Would your will be considered legally binding?

The criteria to meet include the following:

• Was the testator of sound mind when the will was written?
• Does the will include the testator’s actual signature instead of a digital signature?
• Does it contain the signatures of two witnesses who are not beneficiaries of the will?

Storage of a will

Informing loved ones where to find the will could help them settle the testator’s affairs smoothly. A safety deposit box at home or a bank could provide safe storage or it could be kept on file with a notary or lawyer who assisted with drafting estate plans.

Keeping estate plans current

With all the possible changes and developments in life, estate plans need reviews in the years following its drafting. Some major life events could necessitate adjustments to the will and other estate documents. For example, the birth of a child or grandchild, divorce, marriage and more could make it necessary to update any arrangements. Changes in the Alberta laws might be another reason to revisit estate plans.

A will could include instructions or information about final arrangements, but it is optional. However, it could reduce the trauma of the loss when loved ones arrange the funeral and burial. These wishes could be included in the will in an effort to make sure the testator’s preferences and desires are met.

The estate representative may also have the following responsibilities: 

• Locating the final will of the deceased person. 
• Locating the will’s beneficiaries and notifying them. 
• Making payment of estate fees. 
• Arranging to get the estate’s value appraised. 
• Applying for the validation of the will by the court. 
• Completing the deceased person’s final tax return along with those required for the estate. 
• Paying all outstanding debts after notifying creditors of the debtor’s death. 
• Following the instructions in the will and dividing the estate accordingly. 
• Preparing financial reports for all the beneficiaries of the estate. 

If the deceased did not have a will in place, the law would determine how to distribute the assets. 

In some cases, the estate representative is responsible for discovering all the deceased person’s assets and evaluating them. These may include the following: 

• A bank account with money or cash funds 
• Real estate 
• TFSAs, RRSPs or other registered plans 
• Mutual funds, bonds, stocks or other investments 
• Personal items of value 

Once all the assets are identified, the representative will be responsible for their safekeeping until the estate’s finalization. Being the representative of an estate is a significant responsibility, and there may be many questions about duties and responsibilities. Anyone in Alberta who accepts the assignment can seek legal and financial guidance. 

Here are some key questions to keep in mind?

Does the buyer have enough experience in the particular field of business?

• The purchaser might benefit from the seller’s assistance to ensure a smooth transition.
• The seller can guide the management of key suppliers and clients during the transition.
• The previous owner can help with retaining key employees.
• Insisting on the lowest possible price might jeopardize a collaborative relationship.
• Alienating the previous owner could potentially also alienate key employees.

What percentage of the purchase price can the buyer commit?

• The purchaser’s available funds will determine the size of the business that can be purchased.
• It may be unrealistic to eye a $25 million business with only $1 million to commit.
• The purchaser’s seed money will also play a role in how much funders will provide.

Can the buyer deal with the debt burden and share control?

• To answer this question, the answers to the previous questions are essential.
• The financing structure will reveal how much money will be available at the buyer’s disposal.
• Contributions by equity investors or financing vendors will determine the level of control sharing.

How does the buyer see the future of the business?

• Any plans to expand or upgrade will affect the structure of the financing.
• Committing all available personal funds to the purchase price will put pursuing visions on hold.
• Including more than the purchase price in the financing arrangement may be essential.

Answering these questions and following the advice of experienced entrepreneurs and legal counsel can lead to successful negotiations in all business acquisitions in Alberta.

Calculating the value of a business is a mathematical exercise carried out by a valuator, based upon one or more of the following:

• Income: This approach bases the value on the business’s projected cash flow, as well as the likelihood of achieving those projections.
• Factors that influence projections: Intellectual property and goodwill could play an essential role in a value based on income.
• Assets: When using this approach, all liabilities of the business – like taxes and debt – are deducted from the business assets, providing the net asset value.
• Market-based: This approach bases the value on the current market, comparing the business with recent business sales involving comparable companies.
• Combined approach: An example of an integrated approach in determining a valuation is using the income-based method in conjunction with the market-based approach.

Reasons that might cause the value and price of a business to differ include a buyer with a different skill set than the seller. Emotions can also play a significant role in determining the theoretical value. A strategic buyer may consider purchasing a business to integrate into existing operations, adding to the theoretical value.

Negotiations between the parties could lead to a price paid in a combination of cash, earn-outs, shares or other structures to serve as a bridge between the price and the business’s value. Buyers of businesses in Alberta can typically expect a difference between value and price. Similarly, the seller must also be prepared to receive a final price that differs from the business’s theoretically calculated value.

Examples of nondisclosure include a property in another province where the responses of the agent and the seller about the reason for selling were misleading. They falsely represented that the property is for sale because the seller’s child had to go to a different school. Upon checking into the matter, the purchaser learned that the seller’s husband, who allegedly was a notorious gang leader, was murdered on the property.

Another potential buyer researched a reasonably priced residential property on Google and learned that the Humane Society seized over 1,000 rabbits that were housed in the home. Sellers must also disclose issues such as electrical, roof-related problems, basement leaks and more. Importantly, disclosure is required even if defects have been remedied. It could be a filled-in cracks in the basement, repaired sewer pipes and other damage, often caused by tree roots.

Purchasers of real estate in Alberta are entitled to ask appropriate questions, and sellers must provide answers on which the potential buyers can rely. Those who have problems with properties bought without full disclosure of problematic issues may have recourse via the province’s legal system. However, the process can be time-consuming and expensive. In the cited example of the gang leader’s murder, the purchasers only recovered their $300,000 deposit nine years after discovering the truth.

Bullying involves inappropriate or unwelcome behaviour by one employee against another. It could be one single occurrence or a series of continuing incidents. Bullying might involve physical abuse, though it most often causes psychological harm.

The following behaviour is workplace bullying:

• Hostility and rudeness, showing a disrespect of an employee or co-worker
• Intimidating and threatening behaviour
• Abuse of power
• Acts that deliberately interfere with the work of the target

Examples of workplace bullying:

• Making written or verbally offensive comments or jokes
• Spreading gossip or rumours
• Isolating or excluding
• Insulting or putting down
• Intimidation by making inappropriate gestures or standing too close
• Stealing credit or praise for work well done
• Taking away responsibilities or work without a valid cause
• Unreasonable deadlines and demands
• Constantly interfering with work
• Frequently changing guidelines
• Tampering with equipment or personal belongings, stalking, spying and pestering

The following behaviour is not regarded as bullying:

• Denying requests for leave or training with a valid reason
• Measuring or evaluating an employee’s work performance
• Enforcing procedures and workplace policies
• Providing a worker with constructive feedback
• Having a private discussion about disciplinary action
• Suspending, dismissing, reprimanding or demoting an employee with just cause

Employees in Alberta who believe they are victims of workplace bullying are entitled to report it to the employer, who must take appropriate action. If the situation is not addressed, it can be reported to higher authorities, and legal action might be the most appropriate way to resolve it.

Charities could be directly or indirectly named as the beneficiaries of wills. Some programs offered by banks allow people to make donations to gift funds. The funds have specific advisory rights that include the following:

• Selecting the fund’s name
• Allocating the value of the yearly grants from the gift fund to donate to charities
• Naming the successors who will manage the gift fund

It also offers the opportunity to arrange for beneficiaries to make ongoing donations in the name of the testator or the family’s name.

Different banks and private non-bank entities in Canada offer charitable gift programs or private giving foundations with varying minimum amounts required. For example, some require $25,000 as a minimum, and others require $10,000. These donor-advised funds are flexible, allowing beneficiaries to continue gifting funds to charities in memory of the testator.

Other options include creating donor-advised funds directly with charitable organizations. Furthermore, the charities might allow the donor or the estate to make recommendations related to the donated funds’ applications. These recommendations are usually non-binding.

Everyone should have a will, and although it need not be overly complicated, the options to personalize a will are endless. A will ensures that loved ones are provided for and that the testator’s legacy is protected. To achieve this, some Alberta residents are creative in structuring their wills and other estate planning documents.

Common liability risks

There are many common circumstances that have the potential to lead to a lawsuit.

For example, you may decide to hire caterers for a business function, which resulted in your guests ending up with food poisoning. Although the catering company caused the illness, the guests can seek to hold the company that hosted the function financially responsible as well. Civil lawsuits may follow, even if the victims of food poisoning are staff members of the host. However, the company may, in turn, launch a legal claim against the caterer or the chef who was in charge of food preparation for the function.

Another example is liability surrounding alcohol service. For instance, you may host a holiday party for your employees to thank them for their hard work during the year. If you choose to serve alcohol at the party – without enforcing a drink limit – you could be held responsible for overserving if one of your guests becomes intoxicated at the event and is involved in a collision on the way home.

These are just a couple examples that underscore the importance of seeking preventative legal protections. Business owners can benefit from taking the following precautions:

• Seeking legal counsel when drafting contracts and agreements
• Ensuring that business contracts contain legally enforceable waivers
• Getting clarity with regard to their obligations and legal rights

By anticipating potential liability claims and taking action to prevent them, business owners can protect their bottom lines.

In second marriages, the estate might be left to a new spouse and the testator’s children from a previous marriage.

Consider the following matters involving the home:

• In many second marriages, the spouses hold the home as tenants in common to ensure the children of each spouse’s previous marriage receive a portion of the respective parent’s share.
• Many couples choose to include a clause in the will by which the surviving spouse will be permitted to continue living in the home for a specific period.
• Upon expiration of that clause, the house is typically placed on the market for sale, and the proceeds divided as directed in the will.
• The surviving spouse usually has the first option to buy the home from the deceased spouse’s estate.

Addressing the following matters to avoid disputes between beneficiaries:

• Stipulate who will be responsible for the home’s operating costs during the stipulated period prior to its sale.
• Stipulate how the house’s valuation must be handled if the surviving spouse exercises the option to purchase the real estate.

Although some of these issues might seem unnecessary, taking steps in the estate planning process to avoid disputes between the stepparent and the testator’s children is always a good idea. Ensuring that life insurance provides sufficient coverage for the surviving spouse to buy the home is another consideration that will make things easier for those left behind upon one spouse’s death.

The Alberta Human Rights Acts says employers are never allowed to discriminate based on any of the following:

• race
• age
• colour
• religion
• gender expression
• gender identity
• ancestry
• physical or mental disability
• where a person was born
• sexual orientation
• source of income 
• marital status

Further, the act stipulates that if anyone in the workplace – including an owner, manager or supervisor – makes threats of violence or harm, it goes against the rules of workplace safety. Constructive feedback to an employee is not considered to be harassment unless the feedback is given in an inappropriate way. Also, employees who believe they have been asked to complete a task that they think is unsafe have the right to refuse and talk to a supervisor or manager. It is up to the employer to remove any danger before asking an employee to do any job. 

When it comes to clothing worn in the workplace, an employer does have some say so. There may be a dress code in place that adheres to aesthetics, safety and health, and if there is such a code, it should apply to all employees. Alberta residents who have questions regarding workplace harassment may wish to speak to an experienced lawyer. Having some knowledge of the laws that govern the workplace may help an employee to know his or her rights.