I am sometimes instructed by a married couple that they want to create “mutual wills”. Generally I shudder at the thought and suggest that really what they might be after are “mirror-image” or reciprocal wills and then I proceed to explain the difference. I have only had one set of clients execute mutual wills after the proffered explanation, so I am led to the conclusion that there is widespread misunderstanding of the term. While there may be occasions for using a mutual will, in my professional opinion, they will be few and far between.
With a surprising degree of frequency I meet with clients to initiate the probate process many years after the death of a loved one. Often the catalyst is an attempt to sell a piece of real estate, at which time they learn that they have no authority to sell because dad’s estate or grandma’s estate was never probated. As many Bermudian families try hard to keep properties within the family, and as many families have a number of pieces of real estate, it can be years before this discovery is made. Then, the whole sale process comes to a grinding halt.
“There is only one kind of shock worse than the totally unexpected: the unexpected for which one has refused to prepare.” Mary, Renault, The Charioteer
In May 2013, I wrote about the importance of addressing digital assets in the context of estate planning. With the passage of almost five years, I thought it would be interesting to revisit this subject. What, if any, progress has been made in identifying the nature and scope of digital assets and the rights arising in respect of those assets on the death of the “user”? To make this review a bit easier, I will adopt the definition of a “custodian” used in the Revised Uniform Fiduciary Access to Digital Assets Act (2015) (“DAA”) of the United States, who is defined as “a person that carries, maintains, processes, receives, or stores a digital asset of a user”. This definition is intended to cover all online accounts, services and social networking providers.
Bermuda has many resourceful and hard-working business proprietors. Each one loves the enterprise he or she has built and for many, the hope is that it will continue many years and possibly many generations into the future. The successful continuation of the business after the death of the proprietor is not, however, a foregone conclusion and if this is a paramount goal of the proprietor, estate planning will be required.
The specific issues that arise in the context of succession to a family business will depend, in the first instance, on the form of that business. Different considerations arise in the context of a sole proprietorship than a limited liability company or partnership, but regardless of the form of business, it is essential to address the future. This article will deal solely with sole proprietorships and I will consider issues related to succession in the context of a limited liability company at a later time.
Recently tabled in the House of Assembly, the Proceeds of Crime Amendment (No.3) Act 2017 (“PCA3”) will have the effect of extending regulatory reach to lay trustees.
Some of you already act as a trustee for a friend or family member. Others will be asked to do so in future. The playing field is changing for lay trustees and it is important to fully understand the responsibilities of the position.
Our property is ours to give. This belief forms the foundation of the common law principle of testamentary freedom - that by the terms of your last will & testament, you may leave whatever you choose to whomever you choose. In Bermuda, the Wills Act 1988 enshrines this principle at clause 5(1): “...every person may dispose, by will executed in accordance with this Act, of all real estate and all personal estate owned by him at the time of his death.”. Nevertheless, this freedom was never seen as entirely divorced from the context of family obligation, as was eloquently expressed by Chief Justice Cockburn in his judgment in the case of Banks v Goodfellow (1870) 5 LR QB 549, 563-565:
While most people prefer to leave nothing in life to chance, there are many who don’t get around to making a Will, for one reason or another. Life is busy after all and planning for death is surely to tempt fate in the wrong direction. Those who are married often make the assumption that the surviving spouse will take everything, in all circumstances. Sadly, this is not the case.
The Seniors Law Reform Committee has made a series of recommendations to the Ministry of Health, Seniors and Environment for amendments to legislation which would better protect seniors from financial abuse. This growing problem is particularly unsettling in the family context, where powers of attorney, joint bank accounts and voluntary conveyances of real estate are used by younger generations to gain control over the assets of their elders. It often remains hidden, because its victims are both ashamed and afraid that, if they resist, they will be placed in residential care and risk abandonment and emotional abuse by the perpetrating family member.