Missing Persons – The Curator

CuratorSometimes people go missing  in circumstances where there is insufficient evidence or insufficient time elapsed to apply for an order of presumption of death.

In such circumstances, counsel will wish to consider appointing a curator under the provisions of the Estates of Missing Persons Act.

Essentially, s. 1 of the Act defines a missing person is a person whose relatives or associates residing at the place where the person was last known to have resided, or with whom the person had been in the habit of communicating, have not heard from the person for at least three months and have been unable to ascertain the persons whereabouts.


s.1 of the Act also provides that where there is an urgent need to have a curator preserve the estate or support the dependants of that person, it is possible to

apply for a curator within three months of the person going missing.


s. 2 of the Act relates to jurisdiction and provides that to establish jurisdiction in the B.C. courts, the missing person must own or have an interest in property in

British Columbia.


From a practical point of view, the curator will most likely be the Official Administrator.  s. 2(3) of the Act specifies that the court must appoint the Official

Administrator unless it is satisfied that some other fit and proper person would be a more desirable curator by reason of business or personal relationship or

any other fact or circumstance.


If someone other than the Official Administrator is appointed curator, the court will likely order a bond be posted for the full value of the estate since the curator is

responsible for preserving the assets of the missing person.




s.3(1) stipulates that the curator has the same powers of dealing with property as the missing person would have if that person were present.  In spite of this

broad wording, however, in reality other sections impose many restrictions on that power.

For example, the following restrictions are included in the Act:


  1. s. 4 requires court approval to sell or mortgage anything property valued at more than $100;
  2. s. 5 requires court approval to dispose of any monies coming into the curator’s hands; and
  3. s. 6 requires court approval to sue or be sued in respect to property owned by the missing person.


Practitioners should be careful in preparing any order to ensure it includes the terms necessary to enable the curator to effectively deal with assets, pay debts

and manage any legal actions without the necessity of requiring further court approval. The Public Guardians Office may have a helpful standard precedent as in

most cases they act as curator in these cases.


s. 3(2) stipulates that any acts performed by the curator during the appointment shall be binding on the missing person and on his or her heirs, personal

representatives and assigns..


s.11 provides that any power of attorney granted by the missing person before the disappearance shall be immediately cancelled and be void.





s. 9 provides that where the missing person is either found, or declared to be dead and probate or letters of administration granted for the estate then, after the

passing of the curator’s accounts, the court may discharge the curator.


Where the person is neither found nor determined to be dead, the curator may still wind up the affairs of the missing person and seek an order for the payment

into court of the missing person’s estate.





Re Hoch(1977) 2 B.C.L.R. 398 dealt with an application by Canada Permanent Trust for its fees as curator for an elderly woman who could not be located for six

months following her husband’s death.  In that case the court held that a curator is a trustee and thus its fees are subject to section 89 of the Trustee Act, with a

maximum fee of  5% of  both capital and revenue.


The court then applied the criteria set out in Re McColl (1967), 65 W.W.R. 110 (B.C.) to determined a fair fee.  The criteria are as follows:


  • the magnitude of the trust.
  • the care and responsibility involved.
  • the time occupied in the administration.
  • the skill and ability displayed.
  • the success achieved in the final result.




The estate lawyer dealing with the affairs of  a missing person must make diligent and reasonable enquiries to try and locate him or her. Where the evidence,

including any inferences that may be drawn from the circumstances of the disappearance, is sufficient, counsel will likely wish to apply for an order of

presumption of death.


Where, however, there is insufficient evidence or time elapsed such as would justify a presumption of death, then a curatorship may be appropriate.  Where a

curator is appointed to deal with the affairs of the missing person, that curator will likely be the Official Administrator.

– See more at: http://www.disinherited.com/blog/missing-persons-curator-appointment-under-estates-missing-persons-act#sthash.4PCYm11L.dpuf

Mom Always Loved You Best

Mom Always Loved YOU Best is an expression that many boomers grew up with.


The Smothers Brothers said it every show.


Trevor Todd of disinherited.com has a sticker with the expression on the back of his Smart car, and frequently notices other driver’s snicker as they pull up behind and read it.


It was with great delight that I read in the Globe and Mail on or about March 22.12 a wonderful article entitled none other than ” MOM ALWAYS LOVED YOU BEST”

I was unable to reproduce the article in its entirety but here are some of the salient features:

1. Adult sibling rivalry remains one of the most harmful and least addressed issues in the family – we all know it when we see it but very few have an idea what to do about it let alone understand it;
2. Sibling rivalry is a normal aspect of childhood -our siblings are our very first rivals who compete with us for love and attention as well as food, toys and jsut about everything else;
3. Sibling relationships are often the longest in our lives– research shows that up to 45% of adults have a rivalrous or distant relationship with a sibling;

4. People questioned late in life often say one of their biggest regrets is being estranged from a sibling;

5. The rivalry often persists into adult hood because it is never dealt with in childhood, while issues with parents often have been;

6. Whereas many adults have been through years of therapy and worked out a lot of guilt and other issues with their parents, when it comes to their siblings, they often can’t even articulate what exactly the problem is


Sound familiar?


I might add that it is great for business.

– See more at: http://www.disinherited.com/blog/mom-always-loved-you-best#sthash.mqaqmUxH.dpuf

Lawyers Risk Much When Taking Contingency Fee Cases

Lawyers Risk Much When Taking Contingency Fee Cases

Contingency Fee Cases Are Risky for the Lawyer, with  very Little risk for the Client.

Contingency fee agreements with  a lawyer where the lawyer only earns a fee based on assets recovered, is commonly known as “the poor man’s key to the court room”.

The Ontario Court of Appeal in Indcondo Building v Sloan ( Feb.2012) held that law firms working under a contingency fee agreement do not have to post security for costs when representing cash strapped clients.

It is believed that the decision is also the first time the court has recognized the risk law firms face in being stuck with disbursement costs in contingency fee cases agreements and the significant barrier that could create for lawyers involved in them.

Mr. Justice Armstrong stated that as a matter of principle,” the lawyer who acts in a contingency fee basis is already carrying a significant risk of not being paid and, as in this case, being stuck with the cost of paying the disbursements”.

To force upon law firms the additional burden of posting security for costs would no doubt have a chilling effect on those lawyers who might otherwise make their services available on a contingency basis, thus creating another problem for the general public in its frustrated  access to justice.

The main defendant argued that  law firms in some circumstances should be required to post security for costs on behalf of the client.

They sought an order that the law firm pay into court $300,000 in security for costs of the action, and a further $75,000 in security for costs of the appeal.

In a sense, disinherited.com is of the view that the decision seems to say lawyers cannot be held responsible for their clients costs simply because they are representing clients in a contingency fee agreement.

The court appears to have made a policy decision of access to the courts, and therefore lawyer should not have to bear the financial burden of their clients cases, as if they had to do so, it would create a significant chilling effect upon the overall access to the courts by the public.

The decision seems to fall into line with the general rule that the courts rarely order lawyers to pay costs except in cases of misconduct.

disinherited.com strongly agrees with the reasoning of this decision and contingency fee agreements in principle as the “poor man’s key of the courtroom”.

The Top Five Reasons Why Families Fight Over Inheritances

Loveless familyWhy Families Fight Over Inheritances?

In “Blood and Money: Why Families Fight Over Inheritances and What to Do About It, “author Mark Accettura draws on his experience of 30 years of research in the fields of evolutionary psychology, gerontology, psychiatry, Gen. psychology and neuropsychology into his theories.

Not surprisingly to disinherited.com, but  perhaps surprising to others, is that he finds GREED is rarely the principal motive in fighting families.

He posits five basics reasons for family inheritance disputes:

1. One or more members of the family has a partial or full blown personality disorder that causes them to distort and escalate natural family rivalries into personal and legal battles;

2. Our psychological sense of self is intertwined with the approval then inheritance tends represents especially if the descendent is a parent.

At disinherited.com we have frequently commented and observed that money is often equated with love, and conversely lack of inheritance is equated with lack of love, particularly  from a parent;

3. Humans are genetically predisposed to competition and conflict;

4. We are genetically hardwired to be on the lookout for exclusion, sometimes finding it where it doesn’t exist;

5. Families fight because the death of a loved one activates the death anxieties of those left behind;

He mentioned and again is it is the experience of disinherited.com, that a significant number of inheritance disputes  involve testator’s or beneficiaries from dysfunctional families who are mentally ill or addicted, or so suffer from one or more various personality disorders such as antisocial, borderline histrionic, and particularly narcissistic.

A Beacon of Hope in the Practice of Law

A Beacon of Hope

Did you know that of all women called to the bar in 2003, only 66 percent retained practising status in 2008 in comparison with 80 percent of men called in the same year?

Did you know the trend in BC is that the number of lawyers in the older age ranges (50 to 65) has increased significantly whereas the number of lawyers in the younger age range (25 to 40) has remained the same or has declined?

In 1998, 77 percent of BC’s legal profession was under the age of 50 but by 2008, only 55 percent of the profession was under the age of 50. If those trends continue, the legal profession can expect to lose many lawyers to retiredment without a corresponding increase in the number of younger lawyers.

The reasons cited for these lawyers leaving the practice of law are the usual suspects: Too much work, lack of mentorship, inflexibility of work schedules, and generally very little time for family, friends, leisure, or a life outside work.

The hypotheseis examined in this article is that the above statistics can be changed with a revival of the mentorship concept, and with a lot of creativity and determination. In her story, Candace Cho shows how the disastrous statistic can be circumvented.

The Mentor Perspective

Early in my career, I had the great benefit of a wonderful mentor, Dennis Milne. Dennis was an excellent counsel with a wealth of experience. His guidance forever forged my legal career.

Even today, when in doubt, I inevitably ask, “what would Dennis have done?” and the solution magically appears. Dennis’s support and advice gave me much-needed confidence, especially when I was a novice. It continues to support me today.

Because mentoring relationships in the practice of law have generally fallen by the wayside, we are all losing out. Unquestionably, the benefits of mentoring are reciprocal!

When I shared my views with Candace over lunch, we reached a mentoring agreement in no time.

Each relationship will be unique but Candace and I discuss every topic under the sun and most days we share several emails. Our exchange of marketing ideas has been especially stimulating. When Candace faces challenges in dealing with opposing counsel, I help with effective strategies for stick-handling such files.

From a mentor’s perspective, it is flattering to think someone else believes our opinion is important. The enthusiasm of a young lawyer is contagious and re-invigorating. The fresh ideas and perspectives Candace brings help rejuvenate me.

It is especially rewarding to believe that in some way I help ensure this bright young lawyer will remain and strive in our profession, rather than give up in frustration and stress.

Trevor Todd restricts his practice to Wills, estates, and estate litigation. He has practised law for 34 years and is a past chair of the Wills and Trusts (Vancouver) Subsection, BC Branch of the Canadian Bar Association, and a past president of the Trial Lawyers Association of BC. Trevor frequently lectures to the Trial Lawyers, CLE, and the BC Notaries and also teaches estate law to new Notaries. His Website includes 30 articles on various topics of estate law.

The Mentee Persective by Candace Cho

In August 2009 I was called to the Bar, but found myself unemployed along with half my graduating class due to the worldwide financial crisis.

At first, I did what everyone else did — apply despreately to any job posting that came up. After a while though, I thought about the depressing statistics described above and realized that even if I found work as an associate, the odds were I was going to leave the practice of law in a few years anyway, out of sheer frustration. What was the alternative? The only apparent answer to me was to rebel against tradition and carve my own way to professional fulfillment.

Equipped with my undergraduate background in marketing and my entrepreneurial spirit, I decided to take the plunge to start my own law firm — all on my own terms. I decided my competencies and interest were in estate litigation; I would build a boutique practice in that area of law.

I had the fortune to meet my current mentor Trevor Todd during my articling year while working on a complex estate litigation; Trevor was acting as opposing counsel. When I made the decision to start my own practice in estate litigation, it seemed a good idea to get better acquainted with him to determine if a business association could be negotiated; he was clearly an experienced lawyer in the field.

To my pleasant surprise, he was keen and eager to meet with me, and he began referring work to me immediately after our first business lunch.

Trevor had, in fact, rejected the traditional firm model years ago, and had developed an alternative business model based on referral associations with independent lawyers he trusted and repsected. He told me he had been looking for a junior lawyer for some time to whom to refer work, but had had difficulty finding someone to form an association.

We hit it off right away at our lunch; the seeds of our mentorship relationship were already forming as we exchanged our different, yet complementary ideas about marketing, the practice of law, politics, and various social issues.

As Trevor started referring more and more files to me, I was quickly becoming overwhelmed with the sense that I was getting in way over my head. While I derived immense satisfaction from the freedom and creativity of managing my own files, and having direct client contact, something was not quite right. I was a young and inexperienced lawyer pretending to my clients that I had all the answers, when in reality I was insecure about my abilities and decisions. In short, I needed a mentor.

At that point, I proposed to Trevor that I pay him a mentorship fee in addition to the referral fee I was paying him for files he was referring to me. This novel proposal was accepted by him, which allowed us to forge a unique mentorship relationship. Trevor and I meet for dim sum lunch once a week to discuss litigation strategy, client management, politics, and any other topic that interests us on that particular day.

The net effect of this relationship is that I have all the benefits of having a boss, but none of the drawbacks. I get the wisdom and knowledge from an experienced lawyer to help me manage my practice, but I have the freedom to determine my own hours, run my own business, and have the final say on how to conduct my files.

Conversely, Trevor has all the benefits of having an associate, with none of the drawbacks. He receives monetary compensation for his mentorship and source of referral work, but does not have the risks of having to pay a set salary or overhead expenses associated with hiring an associate. It is a beautifully symbiotic relationship because it is mutually beneficial and satisfactory to both parties.

I just celebrated my first anniversary of lawnching my own business, Onyx Law Office, and I could not be happier. I have a burgeoning practice with meaningful work, manageable clients, great mentorship, and enough flexibility and profit to afford to take vacations, spend time with loved ones, and serve the community. What’s more, I can honestly say I look forward to going to work, and am passionate about what I do.


The Scrivener

Volume 20 Number 1 Spring 2011