This week, Mark Zuckerberg, CEO of Facebook, launched an initiative to make organ donation part of the social media site.  According to a news article by the CBC,  Facebook users in the USA and the UK can register themselves as organ donors and encourage their friends to do the same.  Users can also add becoming an organ donor to their timeline on the site.  (See:  www.cbc.ca/news/canada/ottawa/story/2012/05/01/facebook-organ-donation.html)

In BC,  Organ Donation is made under the Human Tissue Gift Act (www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96211_01) and coordinated by the BC Transplant Agency.  According to their website, surveys indicate that 85% of British Columbians support organ donation after death, but only 15% have registered on the BC Organ Donor Registry.⁽¹⁾   There are hundreds of people in British Columbia currently awaiting various transplants, and the agency also reports the numbers of transplants performed on their website.⁽²⁾

British Columbians used to get organ donor decals on their Care Cards and/or Driver’s Licenses.  However, this has been replaced by a central registry, and the decals are no longer sufficient.  If you intend to register as an organ donor, you can register online at www.transplant.bc.ca.  By signing up on the registry, you consent to organ donation is registered in a secure database, and your family will not have to make this decision for you.   You can also limit the donations you wish to make (i.e. which organs) and you can also register that you do NOT wish to be an organ donor.

It is always a good idea to discuss your intentions with your close family, so they will be aware of your views.  You can also record your intentions in a Representation Agreement, so that your representative has your views in writing, and thus can also help you when you are no longer able to advocate for yourself.   If you wish to modify or change your intentions, you can make a new Representation Agreement.    

(1)  See:  www.transplant.bc.ca/odr_criteria_main.htm

(2)  See: www.transplant.bc.ca/stats_faqs_main.htm#currentstats

The BC Supreme Court recently ordered that the donor sperm stored at a fertility clinic for a lesbian couple should be equally divided between them when they separated – with the result that the donor sperm could be used for insemination of a new spouse. To see the judgment in J.C.M. v. A.N.A., 2012 BCSC 584, go to http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc584/2012bcsc584.html.

During their relationship, JCM and ANA each gave birth to one child conceived through donor insemination, using the same sperm donor. When they separated, they still had 13 donor sperm vials stored at the fertility clinic. Their separation agreement dealt with custody and access to the children and division of the couple’s property generally – with all joint property of the relationship to be divided equally between them – but didn’t specifically deal with the donor sperm.

After the separation, JCM started a new relationship and wanted her new partner to conceive a child using the donor sperm. As the donor had retired from the program, and JCM’s efforts to find other parents with extra vials of the same donor were unsuccessful, the donor sperm stored at the clinic was the only way to ensure a biological connection between the to-be siblings. Not surprisingly, ANA preferred that the donor sperm be destroyed.

JCM and ANA did not have a contract with either the fertility clinic or the sperm bank that defined their rights to the sperm vials.

The sperm vials are property

Even though the court recognized that donor sperm used to conceive children does not have the same emotional status as other assets, the court found that the sperm vials should be treated as property and divided as if they were property. Once the couple purchased the sperm, it was their joint property to be used for their benefit. Everyone involved along the way – the donor, the sperm bank, the clinic and the couple – treated the donor sperm as property.

While it is generally important to balance one person’s right to procreate with another person’s right to avoid procreation, there was no need to balance here because ANA would not be the biological parent of any child conceived using the donor sperm and would not have any parental responsibilities.

[Interestingly, the court noted that the Assisted Human Reproduction Act prohibits the purchase and sale of sperm but didn’t comment on whether the purchase of sperm from the United States, as was the case here, violated the Act. The court did state that a person can own property they are not allowed to sell.]

The best interests of existing and future children should not be considered

It would be speculative at best to consider the best interest of children who may conceived in the future. Also, if the case involved a man and woman, there would be nothing to stop the man from fathering children with as many other women as he wished, with all the children being half siblings (making the argument about best interests of the children potentially discriminatory).

Anonymous sperm donation is not proscribed in BC

Despite the Pratten v. BC decision on the rights of sperm donor offspring, there was no reason to decide this application on the basis that anonymous sperm donation is proscribed in BC. Pratten dealt with the entitlement to information (see my blog post on this case http://www.bcheritagelaw.com/blog/adoption/bc-court-declares-an-end-to-anonymous-sperm-donation/) , and a decision about legality of anonymous sperm donation would be outside the scope of the application (and pointless, as the sperm had already been donated anonymously in this case).

 The donor sperm should be equally divided

The parties’ own approach to division of all their assets was to divide joint assets equally, and equal division of the sperm vials was consistent with this. ANA could decide to sell her share of the sperm vials to JCM or dispose of them as she wished.

Last week, the CBC reported a story about a garage sale, a painting by  famous artist Tom Thomson, and a sketch painted by one of Canada famous “Group of Seven” artists, Frederick Varley.  Someone purchased the two pieces of art at a garage sale for only one hundred dollars, and after having the art appraised and examined by experts, has discovered that his or her garage sale find is now likely to be worth in the six-figures- a “very conservative” estimate being at least $150,000 for the Thomson painting alone: see http://www.cbc.ca/news/canada/british-columbia/story/2012/04/12/bc-group-of-seven-garage-sale.html  

The news report does not give any details as to the shopper or the seller in this case, but executors do often sell the contents of a home, and I frequently see signs for “estate garage sales” in my neighbourhood.    These found paintings are a good example why a wise executor may have articles in the  home of the deceased appraised or valued by a professional appraiser, especially if there is substantial art or collectibles, and little is known about the origins of the items.     The appraisal values may also be used to ensure the property of the deceased is fully insured, and to ensure proper division of assets, such as where the will includes a power to distribute in specie (in its actual form) and there are multiple beneficiaries. Appraisal information is also disclosed on the Statement of Assets and Liabilities, which is attached to the Executor or Administrator’s affidavit and filed with the Court.

One of the first decisions facing a family when a loved one dies is the question of what to do with the deceased’s bodily remains. It is sometimes a difficult decision, especially when there are conflicting religious views and contentious family relationships.

In British Columbia, section 5 of the Cremation Internment and Funeral Services Act S.B.C. 2004, c.35 sets out a statutory hierarchy of persons who are entitled to control the disposition of the deceased’s bodily remains.

Although one might expect a spouse or close relative to have first priority, the Act states that it is the personal representative or the Executor named in the deceased’s Will who controls the disposition of the remains.

Many people make no provisions at all in their will for their funeral wishes.  They are content to leave the details to their executor and loved ones. If it does matter to you however, be sure to provide reasonable, practical instructions in your will that do not place an undue hardship on your executor or family members.

In British Columbia, if the deceased included written instructions in a will regarding specific funeral or burial provisions, or entered into a funeral services contract prior to death, then, as per s. 6 of the Cremation Internment and Funeral Services Act, those wishes are binding on the executor, unless they would be unreasonable, impractical or cause undue hardship. A further consideration is found in the Supreme Court of Canada’s decision in Schara Tzdeck v Royal Trust Co [1952] where the Court stated that, at common law, an executor has a duty to dispose of the deceased’s remains in a manner suitable to the deceased’s station in life.

In carrying out his or her duties, an executor may not act capriciously with respect to the disposition of human remains. In Re Popp Estate, 2001 BCSC, the deceased was cremated and her executor husband temporarily buried her ashes alongside the remains of his mother in a plot that had been intended for his mother and father. It was the husband’s intention, upon the death of his father, to remove his wife’s ashes and place his father’s remains beside the mother’s. He did not provide a plaque or headstone for his deceased wife. The deceased’s sister petitioned the Court pursuant to s. 59 of the Cremation Internment and Funeral Services Act for an order that the deceased’s ashes be disinterred and placed in a separate columbarium. The Court held that the husband’s lack of a plan for the permanent burial site of the deceased’s remains was “irregular or unpredictable” as well as “unaccountable” and therefore “capricious”. The Court agreed with the deceased’s sister and ordered that the remains be disinterred and inurned in the columbarium.  Costs were awarded against the executor husband.

In Kartsonas v Stamoulos 2010 BCCA, the family of the deceased took their dispute over the disposition of the deceased’s remains to the B.C. Court of Appeal. In that case, the deceased executed a will in 1978 naming his son and daughter as executors and beneficiaries of his estate. At some point following that he became estranged from his children and subsequently executed a new will in 2007 appointing his niece as executor and her son as sole beneficiary of his estate.

The deceased’s children initially brought an application in B.C. Supreme Court for an order that they have the sole right to dispose of their father’s remains. The main issue at that time was whether the deceased would be buried in British Columbia or Greece. The trial judge ordered the burial to take place in Vancouver and awarded joint custody of the burial to the deceased’s children and the executor niece. When the children and niece were unable to agree on whether the deceased should have a religious burial service, they were back before the court with another contested application. The children wanted a religious Greek Orthodox service while the niece argued the deceased was an atheist and did not want a religious ceremony. On a balance of the evidence, the trial judge ordered that the children have the sole right to control the disposition of their father’s remains.

The niece appealed the trial decision on the basis that the deceased was estranged from his children at the date of his death and had entrusted her to carry out his funeral arrangements. She also relied on a Representation Agreement executed at the same time as the 2007 will wherein the deceased appointed her as his representative and directed that she have complete authority over his funeral arrangements.

The Court of Appeal referred to s. 5 of the Cremation Internment and Funeral Services Act.  When a person brings a court application pursuant to s 5(4) of the Act for the right to control the disposition of a deceased’s remains, s. 5(5) states the court must have regard to the rights of all persons having an interest and give consideration to:

• The feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased;
• The rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased;
• Any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and;
• Whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.

The Court of Appeal refused to interfere with the trial judge’s exercise of discretion in his consideration of the above provisions. The Honourable Mr. Justice Tysoe writing for the majority noted that, although the 2007 will and representation agreement expressed a preference as to who should have conduct of the deceased’s remains, there was no specific request for a non-religious funeral. The appeal was dismissed.

In summary, if you have specific funeral or burial wishes, be sure that they are reasonable and practicable, include them in your will and be sure to appoint an executor you are confident will follow your instructions, not only with respect to the whole of your estate but also regarding your burial requests.   Discuss your wishes with family members and consider whether your estate can bear the costs of your funeral directions.  If you want your ashes scattered from the peak of Mount Kiliminjaro, leave clear instructions and be sure someone is ready, willing and and able for the hike!

This week, several news outlets are reporting that singer Britney Spears’s father and/or fiancé is petitioning the Court to have her fiancé be added as conservator of her personal affairs (along with her father), while her father will retain control over her financial affairs with an attorney (see, amongst others:  http://www.cbsnews.com/8301-31749_162-57411766-10391698/britney-spears-petitions-court-to-let-fiance-help-with-her-personal-affairs/). 

As British Columbia practitioners, we will not comment on Ms. Spears’s case or its medical and legal underpinnings.  However, we can write about what would happen in British Columbia, where  this type of guardianship is known as a committee (the adult guardian).  The committee’s responsibilities  can be similarly split between one or more persons, and the responsibilities for the person’s (a) financial and legal affairs and (b) personal affairs may also be ordered to be managed by more than one person, either jointly or separately. 

In British Columbia, to replace or add new committee(s), an application to the Court is required.  On such an application, the Court can rescind the appointment of a previously appointed committee and appoint one or more other persons in place of the former committee(s) (see Bua v. Clegg, 2006 BCSC 802 (“Bua”) and Re: Brady, (1996) 14 E.T.R. (2d) 133), however the Committee discharged (removed) by the Court will likely still be required to pass his or her accounts regarding the estate of the incapable person (see BC Patients Property Act, ss. 6 and 13).

Appointing an incapable person’s close relative, such as a father or fiancé, might seem to create a conflict of interest – for example, the incapable person may live with such close relatives.  This does not bar such a person from being appointed committee, but the situation will be carefully considered by the Court in the application.  In British Columbia,  the Court is guided by what is in the best interests of the incapable person, and the Court has expressed a preference for the personal touch of family member(s) acting as committee(s).  Restrictions might be added, for example, to protect the incapable person’s assets, or a security bond may be ordered.  In Bua, for example, the Court replaced a committee (a friend of the patient) with the incapable person’s spouse and his friend, notwithstanding the application of the Public Guardian and Trustee to act as committee and the objections of the incapable person’s siblings to the spouse being so appointed.  It was alleged that the spouse was using the incapable person’s estate to support family expenses, arguably creating a conflict of interest.  The Court placed restrictions on the use of the patient’s assets as a safeguard.

Ms. Spears’ case is also an example of how the spectrum of incapacity can be broad. Some patients may be completely unresponsive and clearly in need of a decision-maker, while at the other end, patients may be quite active but still require someone else to make decisions.   In BC, applicants for a committeeship must satisfy the court that a person is incapable, which must be supported by at least two doctor’s affidavits.  See my previous post “What is a Committeeship, and why you might need one”  (http://www.bcheritagelaw.com/blog/estate-litigation/what-is-a-committeeship-and-why-you-might-need-one/) on the process for an initial committee appointment order.

Sometimes the original will just cannot be found.  The person might have moved, and a key box is missing, or there might be circumstances that suggest the original will not ever be found, such as a house fire, flood, or another unexpected disaster.  A will might have been given to a third person for safekeeping, but the keeper has lost it.

In these and other circumstances, an applicant may still be able to get probate of a copy of the will, despite the original being unavailable.   In order to so, the application must address that there was at some point a valid will, properly executed; that the will was not revoked, and of course, what the will contained as its terms. 

Searching the Wills Registry maintained by the Vital Statistics Agency is a good place to start; however, the registry does not accept nor keep copies of the will itself.

As the applicant will need to supply evidence to the Court about the lost will, he or she should consult with the drafting lawyer if possible; this should be done promptly to avoid the loss of evidence.  The lawyer may be able to give evidence that the will was executed, and the contents of it.   The lawyer may have further evidence, such that the deceased had contacted him or her recently, and opted to not update their will. 

A more difficult issue may be that there is a presumption that the deceased, if he kept the will himself, is presumed to have destroyed the will with the intention of revoking it.  This presumption needs to be rebutted – with evidence about the nature of the personality of the deceased, statements made to his intended heirs, and the words and action of the deceased.  In the 1990 decision of Parker v. Doe, [1990] B.C.J. No. 1516, the will of the deceased was not found in her home where everyone had expected it to be found.  In that case, the Court noted that the deceased had mentioned her will very shortly before her death, and that her relationship with her intended heirs had not changed, and the copy of the will was probated.   

If no copy is available, it is also possible to prove the contents of the wills through witnesses.  This can be a very challenging application, and will depend greatly upon the witnesses available.  In such a case,  legal counsel should be consulted without delay.

When a loved one passes, it’s a difficult time for their family and friends.  Sometimes there is enough time to get one’s affairs in order and share the important details with others, such as where his or her will is located.  In order to apply for probate or a grant of administration, the original will (and any codicils) must be filed with the probate registry.  Any memoranda, formal or informal, should also be provided to the estate solicitor for advice.  Preserve the condition of the documents carefully, and NEVER undo the staples, even to photocopy the document(s).

Sometimes everyone thinks there is a will, but it isn’t readily known exactly where it is.  In British Columbia,  the Vital Statistics Agency maintains a registry for the location and date of wills for people who choose to register.  The cost of registering the date and location of your will is less than $20, and can save your family the stress of searching for it.  In order to search the registry, you should provide to your estate solicitor the person’s full name and any nicknames or aliases, date and place of birth, and date and place of death. The Wills Search is also filed as part of the application for probate or administration.

Unfortunately, sometimes there is no will registered, and while it is thought the deceased left a will, nobody knows where it is – maybe it was done many years ago, or maybe a new will had recently been made, but the registration not yet complete.  In this case, here are some suggestions to search or make enquiries:

1. The deceased’s lawyer, if known, even if he or she has a different usual practice area;
2. Lawyers and Notaries near the deceased’s home or work;
3. The deceased’s home, in her papers or filing system;
4. The deceased home, with other valuables;
5. With near relatives and close friends;
6. In a safety deposit box;
7. With the likely executor(s); or
8. With the person who has been given decision-making authority under a Power of Attorney or Representation Agreement.

If all else fails, consider publishing an advertisement in the local papers to see if anyone else holds it.

 If the original will cannot be found, it may be possible to seek probate of a copy or draft may be possible, which will be discussed in a subsequent post.

If you have a Will, getting married automatically revokes your Will, unless the Will contains a declaration that it is made in contemplation of the marriage . Without a new Will, your estate would pass on an intestacy, undoing  all the organization you did to get your previous estate planning in place.

Moving in with your partner does not have this technical effect, but is also a good time to review your estate plan.  For one thing, once you have lived and cohabited together for a period of at least 2 years you will have an obligation to each other as spouses under BC’s Wills Variation Act (see more below).

Depending on your situation and the intentions of yourself and your fiancé, your new Will and estate plan may be very similar or quite different to your existing one.

Some of the basic things to discuss:

• Who you want as executors? (each other perhaps, with other backups)
• If you have minor children together, who will be the guardian if something happens to both of you?
• How do you plan to provide for each other in your Wills? Who else do you have obligations to (ie, children) or want to consider in your plan?
• If you are alive but not capable of managing your finances or health care decisions, who do you want to take care of things?

For couples without children, a common plan is to leave everything to each other but to provide for other family members, friends or charity if the partner predeceases. For couples who have children together (or plan to soon), a common plan is to leave everything to each other and then to the children if something happens to both of them. That said, there is no cookie cutter solution, and it depends on your whole situation.

If you or you fiancé has children from a previous marriage, you need a little more discussion and advice to come up with the right plan.  If the children are minors, most people have joint guardianship with their ex and the child’s other surviving parent would be the guardian.  In terms of property, under BC’s Wills Variation Act, a person has responsibility both to their spouse and to their children (which means biological or legally adopted children).  If the couple is retired, each have plenty of resources, and plan to keep their estates separate for the children from previous relationships, they may do Wills leaving their estates to their children and a marriage agreement to confirm the agreement not to leave anything to each other.

On the other hand, the “all to each other, then to the children” simple Will plan does not work for a blended family. It does not adequately protect the children because the surviving spouse can remarry or change their Will after the death of the first spouse. Some solutions are to leave portions of the estate to each of spouse and children, spousal trusts in the Will (so the survivor can have the benefit of the estate during their life), joint spousal trusts if the spouses are over 65 years old, or using life insurance to create a direct separate inheritance for the children. For more on spousal trusts, see http://www.bcheritagelaw.com/blog/estate-planning/estate-planning-for-blended-families-carefully-balancing-interests/.

Presentation to the Canadian Bar Association, BC Branch ADR-Vancouver Section on March 13, 2012

• essentially a summary of Elder and Guardianship Mediation: A Report Prepared by The Canadian Centre for Elder Law, (CCEL Report No. 5), January 2012 (the “Report”)

•  The Report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianshipmediation

• Funded by the Law Foundation of BC, the Report is the first comprehensive report on elder and guardianship mediation in BC and Canada
• the Aim of the Report is to give practical assistance to those directly engaged in the field of elder and guardianship mediation in BC
• Over three years, all BC Law Institute staff members contributed to the research, design, management and execution of the Report, including Jim Emmerton, LauraWatts, Krista James, Joan Braun, Greg Blue, Kevin Zakreski, Emma J. Butt (the principal writer), and others

Elder and Guardianship Mediation Today in BC

• Elder and guardianship mediation are new and growing fields of practice;
• BC now has proposed legislation calling for mandatory mediation in adult guardianship matters;

• Mandatory mediation provisions were included in the major reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (“Bill 29”)

Read more….