9-FAMILY TRUSTS

What is it ?

You have heard the expression " Family Trust " without knowing exactly what it is?


Let’s see how we can explain this concept:

  • A child or another parent is affected by a physical or mental handicap which will probably prevent him or her to work or fill its needs;
  • You wish to have your assets or part thereof seizure proof or protected in case of bankruptcy;
  • Your heirs or legatees are not old of mature enough to manage the capital that you want to bequeath to them;
  • In those three cases (among others) the Civil Code of Quebec proposes a practical and efficient tool which is called a “trust”.

Structure:
The legal document creating a Trust provides for different participants:

  • The Settlor: it is the person who transfers funds or other assets to constitute the patrimony of the Trust; at any time, other funds or assets may be added to the Trust patrimony;
  • The Trustee(s): the persons who receive the patrimony and manage it;
  • The Beneficiary(ies): the person(s) who will receive the benefit of the income of the Trust, like children, other parents etc.

The Settlor or the Beneficiary(ies) can act as Trustee(s) as long as there is another Trustee who is neither a Settlor nor a Beneficiary.

Advantages: The Trust creates a distinct and separate patrimony to which the creditors of the Trustee or a Beneficiary.

Constitution: A Trust is constituted by means of a Deed under private signature which does not have to be registered or otherwise published, except in some cases. The document, generally quite extensive, contains provisions contemplating various possibilities like the death, the revocation or resignation of the Trustee.

Cost: The services of a qualified jurist must be retained to prepare the structure of a Trust. Depending on the complexity of the matter, the fees can vary from $3,000 to $15,000.

Tax treatment: A trust is taxed at a rate of approximately 50%. However, if income is given to the Beneficiary, the amounts so given do not form part of the assets taxed in the hands of the Trustee. A Trust is a follow through, tax wise.

Who may use it? A Trust is a solution to various problems. It is available of any person who wants to constitute a separate patrimony of $50,000 or more.

The partners of Boverry have experience in the constitution of Trusts and can counsel you in this regard.

The foregoing information is provided for the benefit of those consulting the Web site of BOVERRY, ATTORNEYS. It shall not be considered as a legal opinion in respect of particular circumstances.

8-SMALL CLAIMS COURT

Actions involving small claims

Someone owes you money ender a loan, a lease (other than for a dwelling or piece of land) or you are unsatisfied of a service or a good purchased and paid for, like: dental treatment, plumber, subscription to a physical training center, chiropractor, furniture, repair of all sorts etc.

If the amount of your claim does not exceed a certain maximum as mentioned below, the Law offers you to avail yourself of the Small Claims Court. It is a procedure that is not expensive, well organised and pretty fast.

Any individual, civil partnership or corporation, as well as a tutor, a curator or a mandatary in the execution of a mandate given in case of incapacity, who has a claim not exceeding $15,000.00, without taking interest into account, can take a recovery recourse solely before the Small Claims Court. However, this does not apply to claims concerning the lease of a dwelling, a piece of vacant land or claims for alimony. If the claim exceeds $15,000.00, the claiming party may reduce it to this maximum in order to be able to take action before the Small Claims Court.

A partnership or a corporation can make a claim before this court only if, during the 12 months preceding the date of its legal action, it had no more than 5 employees.

The claim is introduced in the judicial district where the defendant is domiciled.

An individual must act by himself and cannot be represented by a lawyer. Partnerships and corporations must be represented an officer or other person bound exclusively to them under a contract of employment.
The claim must be made in a writing establishing the facts on which it is based and the documents (contracts, correspondence, emails) supporting the claim must be appended thereto. Forms are available to prepare a claim or a defense.
 
The Clerk of the Court notifies the defendant of the claim filed and provides him with a list of the documents filed with the claim.

The defendant has the option to pay the amount claimed, to make a settlement with the plaintiff, to contest the claim or even to make a counterclaim. Contestation is made in writing as well and the relevant documents must be appended. A contestation or counterclaim is notified to the plaintiff in the same manner. Failure by the defendant to respond may result in a judgement rendered by default against him by the Court who will have examined and evaluated the evidence presented by plaintiff at a hearing.

At least 15 days prior to the date fixed for hearing, the parties can provide the Clerk with the names of their witnesses who, if they do not come voluntarily, will be assigned by the Clerk.

At the hearing, the judge informs the parties of the applicable rules of evidence and procedure. The judge will examine the witnesses himself and will help them in an equitable and impartial manner in order to establish and apply the law.

The judgement is provided in writing under the signature of the judge. It is final and is not subject to appeal. Unless it is rendered on the bench immediately after the hearing, the parties are informed of the judgement by the Clerk and provided with a copy thereof. The judgement may be executed only 30 days after the date at which it has been rendered or 10 days if rendered by default in the absence of the defendant.

If a party against whom judgement has been rendered does not voluntarily comply with the conclusions thereof, forced execution is available against the assets of the party against whom it has been rendered.

The firm BOVERRY, ATTORNEYS can help in the preparation of a claim, a defense or in settlement discussions. The firm can also assist in the preparation of a hearing and in execution proceedings. Our legal services are of the best quality and we propose a very competitive fee structure which is well adapted to our clients.

The foregoing information is provided for the benefit of those consulting the Web site of BOVERRY, ATTORNEYS. It shall not be considered as a legal opinion in respect of particular circumstances.

 

7-HOMOLOGATION OF MANDATOR'S INCAPACITY

Homologation of a Mandate Given in Anticipation of Incapacity.

When the person having given a mandate in anticipation of his incapacity (the “mandator’) becomes incapacitated, the performance of the mandate is subordinate to the homologation of the mandate by the Court, at the request of the mandatary (the person to whom the mandate was given) designated in the mandate.


The homologation is obtained by way of a fairly simple procedure: the mandatary presents to the Court, to a Judge or to the Clerk of the Superior Court a written application requesting the homologation of the mandate. Such application must be served upon all interested parties, particularly upon the mandator, at least 10 days prior to its presentation. The Court, the Judge or the Clerk ensures that the application has been served upon all interested parties. The application is heard by a Judge or the Clerk sitting in his office. However, if the application is contested, it will be heard by the Court sitting in a courtroom.

The application must be supported by evidence that the mandatory has become incapable to take care of his person or look after his assets. Such evidence is generally constituted by the opinion of a physician on the mental or physical condition of the mandator.

An application for homologation can also be presented to a notary. The notary must notify all interested parties in writing, particularly the mandator, and provide them with a copy of the application and all information relevant to the object and the causes of the application. The application must be accompanied by a notice clearly stating the time and place at which the notarial operations are to begin as well as the object of the application and the nature of the rights of the interested persons, including their right to present observations or make any representations they see fit or to oppose the application. The evidence of the incapacity is made in the same manner as if the application was presented to a Judge or the Clerk, or, as the case may be, to the Court sitting in a courtroom.

If the application is contested, the notary must relinquish the matter and inform the interested persons. He draws up the minutes of his operations and transfers the matter to the competent Court.

The mandate ceases to have effect when the Court ascertains that the mandator has again become capable; the mandator may then revoke his mandate if he considers appropriate to do so. If the director general of the health and services establishment providing care or services to the mandator ascertains that the mandator has again become capable, he shall attest to such capacity in a report filed in the office of the Court. Such report includes the medical and psychosocial assessment. The Clerk notifies the mandatary, the mandator and all other interested parties that such a report has been filed. If no objection is made within 30 days, the Court is presumed to have found that the mandator has again become capable. The Clerk must then, without delay, transmit a notice of cessation of the effects of the mandate to the mandator, the mandatary and the Public Curator.


BOVERRY, ATTORNEYS can provide counsel to those who want to obtain the homologation of a mandate given in anticipation of incapacity or provide assistance for the proper proceedings to be made when the mandator has again become capable. The firm can prepare all proceedings and required documentation in any such cases. We propose a very competitive fee structure which is well adapted to our clients.

 

6-MANDATOR’S INCAPACITY

Mandate given in anticipation of the mandator's incapacity.

A mandate given by a person of full age in anticipation of his incapacity to take care of himself or to administrate his property is made by a notarial act en minute or by Deed executed in the presence of witnesses.

The person giving such mandate is called a “Mandator” and the person to whom the mandate is given is called a “Mandatary”.

“A mandate given in the presence of witnesses is written the mandator or by a third person”. (Article 2167 of the Civil Code of Quebec).

If and when the mandator becomes incapable, a motion must be made before the Court for homologation of the mandate; such motion is presented by the mandatary in order to be authorized to act upon the provisions of the mandate.

During the homologation proceedings or even before if a request for homologation is imminent and it is necessary to act to prevent serious harm to the mandator, the court may issue any order it considers necessary to ensure the personal protection of the mandator, his representation in the exercise of civil rights or the administration of his property. (Article 2167.1 of the Civil Code of Quebec).


A mandate in anticipation of incapacity is often given to the spouse of the mandator or one of his children.


The foregoing information is provided to inform those consulting the website of BOVERRY, ATTORNEYS. It should not be considered as a legal opinion for a specific matter.

A consultation with one of the lawyers of BOVERRY, ATTORNEYS is recommended for the preparation or the exercise of a mandate in anticipation of incapacity.

 

5-PROBATION OF WILLS

A will made in the presence of witnesses or a holograph will must be probated (i.e. verified) by the Court before its provisions can be executed.

The demand for probation is submitted to the Court in the Judicial District where the testator had is domicile upon his death or, failing a domicile in Quebec, in the Judicial District where he died or he left property. If the testator was not domiciled or did not die in Quebec, then the demand shall be submitted in the manner stipulated by the laws of the place where he was domiciled or died.

 

In Quebec:

In Quebec, in a probation procedure, all the known heirs and successors shall be summoned to attend the probate operations, unless an exemption is granted by the Court.

The original of the will must be appended to the demand for probation with evidence (generally provided by way of affidavit(s)) that it is the last known will of the testator and that the signature of the testator appearing thereon is the authentic signature of the testator. This procedure can be presented to the Clerk of the Court or to a judge siting in chamber (i.e. in his office) or it may have to be presented in a hearing in a courtroom.

The judgement of probation confers authenticity to the will. The probated will and the judgement are filed in the court’s records. The Clerk of the Court must deliver to any interested person, certified copies of the will, of the evidence submitted and of the judgement.

A will made in the presence of witnesses or a holograph will can also be probated by a notary. The notary to whom a demand for probation is submitted notifies a notice of probate and a copy of the will to all known heirs and successors. Any observations or representations which those persons wish to make must be made, orally or by any other means of communication, within 10 days after the notification of the notice of probate.

The same evidence as would be submitted in probation procedures made before the Court must be submitted to the notary.

If the demand for probation presented to a notary is contested, the notary must transfer the matter to the Court for ruling.

A will probated by a notary is appended to the minutes of his operations prepared by the notary and kept by the notary in his files.  The probated will is deposited in the office of the Court. The notary must deliver certified copies of the probated will and the minutes of his operations to any interested person.


BOVERRY, ATTORNEYS can provide counsel to those needing to have a will probated and prepare the proper proceeding to that effect. The firm proposes a very competitive fee structure which is well adapted to its clients.

 

 

4-FINES AND TICKETS ABROAD

Fines and tickets when travelling abroad

Few of us travelling and driving abroad have not received speed or parking tickets. A question arises in your mind. Should you pay  the ticket ?  It depends.

In principle, you should abide by the law of the country and pay the fines.

 

Canada & U.S.A.:

If  the incident  happened in another Province or in certain States in the U.S.A., New York, Maine, Florida, keep in mind that these jurisdictions have agreements with Quebec under which your driving permit will not be recognized in these  States should you omit to pay the fine and vice-versa.

In the case of other States without these agreements, if you fail to pay or contest and you are arrested later on for one reason or another, your lack of memory may be costly. Preferable to pay.
 

Europe:

Most European countries: France, Great Britain, Germany,etc., have sound regulations which are applied rationnally. The ticket is usually well founded and you should comply with it, unless you believe that it was not justified and you are pretty sure that you will not drive again in this country.

 

Eastern countries:

In Eastern countries, unfortunately, traffic offenses are often a disguise for taxes and with a strong bias towards tourists.

Exercise your best judgment as to wheter the fine was warranted and avoid paying it if it was  outrageous. 

 

South American & Africa:

The same reasoning applies to South American countries and most countries in Africa where the rule of law  is sometimes dubious. Some fines are imposed to boost the agents income.
 

In summary:

In North America best to pay or contest, in Western Europe also. In other parts of the world use your judgment. You should not be abused by pseudo infractions.

If you face such a dilemna, BOVERRY, ATTORNEYS  may be of help in assessing the risks involved.

( These comments do not constitute a legal opinion)

 

3-WILLS

There are only three forms of wills: the notarial will, the will made in the presence of witnesses and the holograph will.

A will must be made by a person of full age. The formalities governing the various kinds of wills shall be observed on pain of nullity.


The notarial will:

it will be made before a notary, en minute, in the presence of a witness or, in certain cases, two witnesses who must be of legal age. The date and place of the making of the will shall be noted on the will. It will be read by the notary to the testator alone or, if the testator chooses, in the presence of a witness. Once the reading is done, the testator shall declare in the presence of the witness that the act read contains the expression of his last wishes. Thereafter, the will is signed by the testator, the witness or witnesses and the notary, in each other’s presence.

A notarial will is an authentic Deed and does not need to be probated by a Court. It is given effect according to its provisions.

 

The will made in the presence of witnesses:

it is written by the testator or by a third person. After making the will, the testator declares in the presence of two witnesses of full age, that the document he is presenting is his will. He need not divulge its contents. The testator signs it at the end or, if he has already signed it, acknowledges his signature before the witnesses. The witnesses thereupon sign the will in the presence of the testator and in the presence of each other. Each page of the will that does not bear the signature of the testator and the witnesses must either signed or initialed by each of them. Upon the death of the testator, the will must be probated by the Court who will ensure, pursuant to the evidence presented, that the will bears the very signature of the testator and constitutes his last known will. Once the judgment of probated is delivered, the will can be given effect according to its provisions.

 

The holograph will:

it must be written entirely, of his own hand, and signed by him without the use of any mechanical process. It is subject to no other formal requirement. The holograph will must be probated by the Court in the same manner as for the will made in the presence of witnesses.


The foregoing information is provided for the benefit of those consulting the Web site of BOVERRY, ATTORNEYS. It shall not be considered as a legal opinion in respect of particular circumstances.

A consultation with one of the lawyers of BOVERRY, ATTORNEYS is recommended, more particularly for the preparation of a will before witnesses. We propose a very competitive fee structure which is well adapted to our clients.

 

2-CAR RENTAL (INSURANCE ?)

Car rentals (insurance with the renting company or with a credit card)


If you rent a car in Canada or abroad, it is possible that your current insurance policies will cover collision, accident or theft risks. Verify your policies.

Otherwise you have a choice between the Insurance offered by the rental company or as a benefit of certain credit cards.

In the first case, the company will charge a daily fee of up to $30.00 a day.

On the other hand, most credit cards, when used to pay the rental, (you have to check
 the benefits associated with yours) will insure the material risks associated with driving.

It is evident that using a credit card will save you money.

Should you choose this option, keep in mind that this type of coverage is subject to strict rules:

1. All of the rental operations should be done with the same card : reservation, initial deposit, final payment. The « same card » excludes another one issued to the same account.

2. In the rental contract, refuse the coverage offered by the Company. There is a  section to this effect in all similar documents : sign it.

3. In case of damages, take pictures if possible and report the incident (Collision or theft)
immediately to the card issuer.

4. The insurance may not cover certain particular vehicles  (Maserati e.g.) or driving in certain countries.

The insured risks are material damages. Physical or material injuries to third parties are usually covered by the rental companies. This is a coverage that in most jurisdictions, have by law, to be assumed by the rental company.

 

This capsule contains information of a general nature and does not constitute a legal opinion.

If ever you have to file a claim with a card issuer, ( we hope not :-) Boverry will be glad to assist.

Bon voyage

1-CHOOSING A LIQUIDATOR (will)

Choosing a liquidator for your estate

Past experience reveal that the settlement of estates often marks the end of harmonious relations in the family: Goodbye to holiday gatherings, fun with siblings, anniversaries parties etc.
 
To avoid these situations, here are are a few basic suggestions:


1. The Will. 
     
It’s of the utmost importance to make a will. Otherwise,  the assets of your estate will be distributed according to the provisions of the Civil Code and may not reflect your wishes.

 

2. The Liquidator (formerly the Executor)
     
Choosing the right person will guarantee a peaceful and professional distribution of your assets amongst the heirs.

Whom should you choose?

If the children are the beneficiaries, select one who meets the following criteria:          
  
a) he or she gets along well with the others and it is not necessary that he be the eldest.

b) he or she should have a certain experience with administrative and financial matters.
       

If the spouse is to be the liquidator, he or she should have the same experience. If no one is qualified in the family, it would be wise to appoint a professional known to the heirs : lawyer, accountant, notary etc.

 


3. Fees. 

Usually, when the liquidator is a member of the family, his expenses will be reimbursed.

In the case of a third party, depending on the complexity of the estate, the liquidator will be paid from 3 to 6% of the value of the assets plus expenses. The testator sets the fees in the will.

For large and complex estates, you may appoint a specialized firm. Every financial institution has a subsidiary which offer these services.


To summarize:

- Make a will
- Appoint a liquidator who has cordial relations with the heirs and a certain business experience
- If you appoint third parties the fees should vary from 3 to 6 %.


Boverry will publish other capsules on this topic and will be glad to be of assistance in drafting your will.