TIPS BY JIWA - NOT INTENDED AS LEGAL ADVICE
“A stitch in time saves nine”. We have all heard this saying but generally ignore the wise advice. I will set out some tips to enable you to implement this advice in our daily lives.
▸ Review all your insurance policies carefully, and seek advice from an insurance broker.
▸ Never sign any documents without first reading and understanding all of the terms contained in it, and when appropriate seek legal advice.
▸ Seek legal advice well before you actually separate or set your date for marriage. Consulting a lawyer well in advance can prove to be the best investment ever.
▸ Best practice must include finding ways and means of avoiding legal problems.
▸ Obtain life insure when you are young, but be careful and prudent when choosing what type of insurance policy to buy. Term policies are very inexpensive, but costs increase every few years (5, 10, 20 years) and are not renewable beyond a certain age. Term to 100 (that is it covers you till you are 100 years old) is more expensive than term policies but you can be assured that it will not likely terminate before you die. Compared to term life policies, Whole life insurance policy is very expensive. Carefully check the differences and don’t let an agent sell you a policy that may not be the best coverage for you. Query: if you have $100.00 to pay every month, is it better to have a coverage of $250,000.00 for term policy or $25,000.00 for whole life coverage.
▸ There are many loopholes that allow cops to search your car without probable cause or a warrant, but do not say YES if they ASK to search your car, always refuse politely.
▸ Make sure that each insurance policy protects you adequately, for items such as flood coverage; valuables (such as stamps, coin, jewellery, etc.); if living in condo, insure contents of the condo and obtain third party liability; if owning a business, purchase key man insurance and business revenue/expense coverage, etc.
▸ Ensure that you answer all questions asked truthfully (such as your health, if young children are residing with you, etc.) when applying for insurance. Insurance companies investigate the insurance coverage after you make a claim (such as when you die) and often terminate insurance policy on grounds that incorrect answers were given by you when applying. Note: the insurance company can terminate the policy for any misrepresentation they discover within two years of the policy date. However, if they discover such misrepresentations after two years of policy date, the insurance company must prove that the misrepresentations were made fraudulently.
▸ Increase third party coverage in your automobile insurance to one or two million (or more), extra coverage is available at modest cost.
▸ Be careful when signing documents to ensure that no terms can be added to the document, and initial all changes or additions, and cross out blank lines or spaces. Always keep copies of documents you sign.
▸ If the police arrest you, you have the right to remain silent, that is that you do not have to answer any questions asked by the police other than your name and address.
▸ Do not make claims for coverage for minor issues as the insurance could be terminated, or your insurance cost could substantially increase.
▸ If entering into a partnership or a shareholding with others, seek to enter into a written contract to deal with issues such as investment, work hours, remuneration for each, divorce, death, disability, inability to work together, etc., and particularly deal with how one can get out (sell his interest) or buy the other one's interest if working together becomes difficult.
▸ For automobile insurance, purchase first accident free coverage, which costs about $60.00 but can save you thousands of dollars.
▸ In most cases, the police cannot search you unless you are arrested or if you say yes to being searched. However, police can search you in other situations - simply refuse to be searched BUT do not prevent them from searching you if they proceed to search you. Just do NOT say yes or you would be said to have consented to the search. If you think that the police are wrongly searching you, tell them politely that you object to the search, and tell your lawyer afterwards about it.
▸ Many people loan monies to friends, relatives, including children, siblings, etc. to help them either buy a property, a business, a car, etc. Even though you lend it with full trust in the person, remember that that person could run into troubles, such as separation and divorce, business reversals, debts or judgments which could force the person into bankruptcy, illness, death, etc. To avoid your losing your hard earned monies, first insist on documenting the loan, then insist on securing your advance by placing a mortgage, or a lien under Personal Property Security Act against the property or business owned by the person. Many people do not do this to avoid paying for these steps. Unfortunately, many such people lose their "loan" by failing to register a lien or a mortgage. Isn’t it better that in the event the person runs into problem, your loan is protected.
▸ Never lie to the police. It is better to not answer questions than to lie.
▸ Seek competent advice before entering into contracts (purchase or sale of property, partnership, shareholders, etc.). Skimping on the cost of TIMELY legal advice is the most costly error people make.
▸ Make arrangements to ensure that your insurance policies are paid and kept in good standing, this is particularly important if you meet with an accident, or become incapable, etc.
▸ If you loan any monies to anyone, pay by cheque indicating on it as a loan. Also insist to make a written contract with terms of repayment, interest, etc.
▸ Do not seek advice of lawyers, accountants or other processionals simply based on cost. You get what you pay for. The extra cost of an experienced professional as opposed to lower cost of an inexperienced professional will bring many added dividends.
▸ Always ensure that you initial all pages and sign at the end of the written page, and strike out blank space.
▸ It is very costly to correct mistakes, then to prevent such mistakes in the first instance. This is applicable to all situations such as driving defensively; regular medical checks and seeing or demanding to be seen by a specialist; seeking legal advice BEFORE getting married (specially for second marriages) or before you separate or before signing contracts, etc.; before buying major items (cars, furniture, hiring contractors, etc.); In other wo
▸ Do not let others (lawyers, accountants, doctors, etc.) decide your fate. Always ask questions, be inquisitive, investigate, and understand fully all of the terms before agreeing to anything.
▸ A spouse who owns a residential property before getting married and owns the same property at the date of separation as their matrimonial home will not be able to deduct the value of the home from Net Family Property. This is not good news for the spouse owing the property, but fantastic news for the other spouse. Therefore consult with an experienced family law lawyer to reverse the bad effect of this situation.
▸ Always make a written record of oral conversations, by sending an email, or a fax (better than sending a letter as an email or fax confirms transmission date and time) to document any important events. It is best to do when memories are fresh.
▸ Prepare powers of attorney well in advance (not self made) - it will cost you a lot grief and money if you do not have one when you really need it.
▸ Upon separation from your spouse, you must make a new will to account for your change in circumstances, and make sure that all beneficiaries (of insurance policies, RRSPs, pension plans etc.) are amended as well. Also make sure to severe any jointly-held properties to tenancies in common. Oh, and don’t forget jointly held bank accounts.
▸ There are limitations periods imposed by law. This means that you MUST bring an action (court application or claim) before the limitations period expires. Therefore, do not sit back if you are wronged by someone and avoid your claim from being dismissed just because you issued your claim one day (or more) after the expiry of a limitations period.
▸ Makes detailed notes as events happen to avoid memory lapses which are very common. Also take pictures or videos to establish your claims. Eg. take pictures of your valuables, or after an accident, etc., so as to preserve a record which can be very valuable piece of evidence if and when needed.
▸ Where the defendant was careless or reckless in not inquiring into the nature of the document (as for example, where he failed to read the document although given ample opportunity to do so) he will not be allowed to escape liability merely by showing that he did not know what he was signing, and there is even less ground for relieving a person who has carelessly signed a document that he knew to be a guarantee, without taking the time to determine its extent.
▸ The law of contract compensates a plaintiff for damages resulting from the defendant's breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain.
▸ A bequest to the named children is in contrast to the gift in the residue clause to “my grandchildren.” The latter is a typical class gift as the grandchildren are not named. Only the survivors of that class, or those added (if any) between the making of the Will and J.D.’s death, will inherit.
▸ Appeal courts review errors of law on a correctness standard while errors relating to facts and factual conclusions are to be reviewed on a standard of palpable and overriding error.
▸ If a man is induced by or relies upon a misrepresentation be it fraudulent or innocent to enter into a contract he has upon discovering the truth, a right to rescission of the contract or to affirm the contract and, if the representation was fraudulent or negligent, to recover damages for the tort of deceit or for the tort of negligence.
▸ A testator’s intention is drawn from the ordinary meaning of the testator’s words in the context of the whole will.
▸ Resulting trust is established where one party has contributed to the purchase price of property but legal title is put in another party’s name. In this situation, equity presumes a resulting trust over the property in proportion to the amount of the monetary contribution.
▸ When a person dies without a Will and is survived by a spouse and no children, then the spouse is entitled to the whole estate. If the deceased also had a child surviving, then the spouse would be entitled to a preferential share (currently $200,000.00) of the estate and the balance (over $200,000.00) would be: shared equally between the spouse and the child; if the deceased had two or more children, then the balance would be shared 1/3 to the spouse and 2/3 to the children.
▸ A Will speaks from the date of death but the testator’s intent is to be determined at the time the will was made.
▸ A testator’s intention is to be discerned by taking the armchair of the testator and taking into account the facts and circumstances known to him at the time.
▸ Disappointed holidayers may recover damages from tour organizers, not only for the diminished value of the promised holiday, but also for their mental distress, frustration and disappointment as a result of breach of contract.
▸ The purpose of damages for breach of contract is to place the plaintiffs in the same position they would have been in if the contract had been performed, while the purpose of damages in tort is to place the plaintiffs in the same position they would have been in if they had not sustained the wrong. The result may be different depending on the basis of liability:
▸ If a testator by his will makes a gift to all his children, naming them, and some of them die in his lifetime, leaving children who survive the testator, the share that those so dying would have taken goes to their representatives; but, if the gift is to all his children without naming them, all goes to the children of the testator who survive him.
▸ A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice.
▸ A gift is a voluntary transfer of property to another without consideration, and typically, a gift has three elements: an intention to donate, an acceptance and a sufficient act of delivery.
▸ For certainty and security in commerce, it is essential that parties be able to rely on properly executed documents. It is expected that a person who signs a document will exercise reasonable care before doing so. Therefore generally speaking, a person who executes a document without taking the trouble to read it is liable on it and cannot plead that he mistook its contents.
▸ Every conveyance of real or personal property made with intent to defeat creditors or others of their just and lawful debts or accounts are void as against such persons and their assigns.
▸ Where an employer offers a constructively dismissed employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. The Ontario Court of Appeal has held that a reasonable person should be expected to do so "[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious.
▸ If a testator’s child, other issue, brother or sister dies in the lifetime of the testator and has issue alive at the time of the testator’s demise, that issue will directly receive the bequest unless the testator has shown a contrary intention.
▸ Duress, whatever form it takes, is a coercion of the will so as to vitiate consent…in a contractual situation commercial pressure is not enough. There must be present some factor which could in law be regarded as coercion of his will so as to vitiate his consent… it is material to inquire whether the person alleged to have been coerced did or did not protest; whether he did nor did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.
▸ We have a judicial system that emphasizes individual responsibility and self-reliance. Generally, parties negotiating a contract expect that each will act entirely in the party’s own interests.
“A stitch in time saves nine”. We have all heard this saying but generally ignore the wise advice. I will set out some tips to enable you to implement this advice in our daily lives.
▸ Review all your insurance policies carefully, and seek advice from an insurance broker.
▸ Never sign any documents without first reading and understanding all of the terms contained in it, and when appropriate seek legal advice.
▸ Seek legal advice well before you actually separate or set your date for marriage. Consulting a lawyer well in advance can prove to be the best investment ever.
▸ Best practice must include finding ways and means of avoiding legal problems.
▸ Obtain life insure when you are young, but be careful and prudent when choosing what type of insurance policy to buy. Term policies are very inexpensive, but costs increase every few years (5, 10, 20 years) and are not renewable beyond a certain age. Term to 100 (that is it covers you till you are 100 years old) is more expensive than term policies but you can be assured that it will not likely terminate before you die. Compared to term life policies, Whole life insurance policy is very expensive. Carefully check the differences and don’t let an agent sell you a policy that may not be the best coverage for you. Query: if you have $100.00 to pay every month, is it better to have a coverage of $250,000.00 for term policy or $25,000.00 for whole life coverage.
▸ There are many loopholes that allow cops to search your car without probable cause or a warrant, but do not say YES if they ASK to search your car, always refuse politely.
▸ Make sure that each insurance policy protects you adequately, for items such as flood coverage; valuables (such as stamps, coin, jewellery, etc.); if living in condo, insure contents of the condo and obtain third party liability; if owning a business, purchase key man insurance and business revenue/expense coverage, etc.
▸ Ensure that you answer all questions asked truthfully (such as your health, if young children are residing with you, etc.) when applying for insurance. Insurance companies investigate the insurance coverage after you make a claim (such as when you die) and often terminate insurance policy on grounds that incorrect answers were given by you when applying. Note: the insurance company can terminate the policy for any misrepresentation they discover within two years of the policy date. However, if they discover such misrepresentations after two years of policy date, the insurance company must prove that the misrepresentations were made fraudulently.
▸ Increase third party coverage in your automobile insurance to one or two million (or more), extra coverage is available at modest cost.
▸ Be careful when signing documents to ensure that no terms can be added to the document, and initial all changes or additions, and cross out blank lines or spaces. Always keep copies of documents you sign.
▸ If the police arrest you, you have the right to remain silent, that is that you do not have to answer any questions asked by the police other than your name and address.
▸ Do not make claims for coverage for minor issues as the insurance could be terminated, or your insurance cost could substantially increase.
▸ If entering into a partnership or a shareholding with others, seek to enter into a written contract to deal with issues such as investment, work hours, remuneration for each, divorce, death, disability, inability to work together, etc., and particularly deal with how one can get out (sell his interest) or buy the other one's interest if working together becomes difficult.
▸ For automobile insurance, purchase first accident free coverage, which costs about $60.00 but can save you thousands of dollars.
▸ In most cases, the police cannot search you unless you are arrested or if you say yes to being searched. However, police can search you in other situations - simply refuse to be searched BUT do not prevent them from searching you if they proceed to search you. Just do NOT say yes or you would be said to have consented to the search. If you think that the police are wrongly searching you, tell them politely that you object to the search, and tell your lawyer afterwards about it.
▸ Many people loan monies to friends, relatives, including children, siblings, etc. to help them either buy a property, a business, a car, etc. Even though you lend it with full trust in the person, remember that that person could run into troubles, such as separation and divorce, business reversals, debts or judgments which could force the person into bankruptcy, illness, death, etc. To avoid your losing your hard earned monies, first insist on documenting the loan, then insist on securing your advance by placing a mortgage, or a lien under Personal Property Security Act against the property or business owned by the person. Many people do not do this to avoid paying for these steps. Unfortunately, many such people lose their "loan" by failing to register a lien or a mortgage. Isn’t it better that in the event the person runs into problem, your loan is protected.
▸ Never lie to the police. It is better to not answer questions than to lie.
▸ Seek competent advice before entering into contracts (purchase or sale of property, partnership, shareholders, etc.). Skimping on the cost of TIMELY legal advice is the most costly error people make.
▸ Make arrangements to ensure that your insurance policies are paid and kept in good standing, this is particularly important if you meet with an accident, or become incapable, etc.
▸ If you loan any monies to anyone, pay by cheque indicating on it as a loan. Also insist to make a written contract with terms of repayment, interest, etc.
▸ Do not seek advice of lawyers, accountants or other processionals simply based on cost. You get what you pay for. The extra cost of an experienced professional as opposed to lower cost of an inexperienced professional will bring many added dividends.
▸ Always ensure that you initial all pages and sign at the end of the written page, and strike out blank space.
▸ It is very costly to correct mistakes, then to prevent such mistakes in the first instance. This is applicable to all situations such as driving defensively; regular medical checks and seeing or demanding to be seen by a specialist; seeking legal advice BEFORE getting married (specially for second marriages) or before you separate or before signing contracts, etc.; before buying major items (cars, furniture, hiring contractors, etc.); In other wo
▸ Do not let others (lawyers, accountants, doctors, etc.) decide your fate. Always ask questions, be inquisitive, investigate, and understand fully all of the terms before agreeing to anything.
▸ A spouse who owns a residential property before getting married and owns the same property at the date of separation as their matrimonial home will not be able to deduct the value of the home from Net Family Property. This is not good news for the spouse owing the property, but fantastic news for the other spouse. Therefore consult with an experienced family law lawyer to reverse the bad effect of this situation.
▸ Always make a written record of oral conversations, by sending an email, or a fax (better than sending a letter as an email or fax confirms transmission date and time) to document any important events. It is best to do when memories are fresh.
▸ Prepare powers of attorney well in advance (not self made) - it will cost you a lot grief and money if you do not have one when you really need it.
▸ Upon separation from your spouse, you must make a new will to account for your change in circumstances, and make sure that all beneficiaries (of insurance policies, RRSPs, pension plans etc.) are amended as well. Also make sure to severe any jointly-held properties to tenancies in common. Oh, and don’t forget jointly held bank accounts.
▸ There are limitations periods imposed by law. This means that you MUST bring an action (court application or claim) before the limitations period expires. Therefore, do not sit back if you are wronged by someone and avoid your claim from being dismissed just because you issued your claim one day (or more) after the expiry of a limitations period.
▸ Makes detailed notes as events happen to avoid memory lapses which are very common. Also take pictures or videos to establish your claims. Eg. take pictures of your valuables, or after an accident, etc., so as to preserve a record which can be very valuable piece of evidence if and when needed.
▸ Where the defendant was careless or reckless in not inquiring into the nature of the document (as for example, where he failed to read the document although given ample opportunity to do so) he will not be allowed to escape liability merely by showing that he did not know what he was signing, and there is even less ground for relieving a person who has carelessly signed a document that he knew to be a guarantee, without taking the time to determine its extent.
▸ The law of contract compensates a plaintiff for damages resulting from the defendant's breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain.
▸ A bequest to the named children is in contrast to the gift in the residue clause to “my grandchildren.” The latter is a typical class gift as the grandchildren are not named. Only the survivors of that class, or those added (if any) between the making of the Will and J.D.’s death, will inherit.
▸ Appeal courts review errors of law on a correctness standard while errors relating to facts and factual conclusions are to be reviewed on a standard of palpable and overriding error.
▸ If a man is induced by or relies upon a misrepresentation be it fraudulent or innocent to enter into a contract he has upon discovering the truth, a right to rescission of the contract or to affirm the contract and, if the representation was fraudulent or negligent, to recover damages for the tort of deceit or for the tort of negligence.
▸ A testator’s intention is drawn from the ordinary meaning of the testator’s words in the context of the whole will.
▸ Resulting trust is established where one party has contributed to the purchase price of property but legal title is put in another party’s name. In this situation, equity presumes a resulting trust over the property in proportion to the amount of the monetary contribution.
▸ When a person dies without a Will and is survived by a spouse and no children, then the spouse is entitled to the whole estate. If the deceased also had a child surviving, then the spouse would be entitled to a preferential share (currently $200,000.00) of the estate and the balance (over $200,000.00) would be: shared equally between the spouse and the child; if the deceased had two or more children, then the balance would be shared 1/3 to the spouse and 2/3 to the children.
▸ A Will speaks from the date of death but the testator’s intent is to be determined at the time the will was made.
▸ A testator’s intention is to be discerned by taking the armchair of the testator and taking into account the facts and circumstances known to him at the time.
▸ Disappointed holidayers may recover damages from tour organizers, not only for the diminished value of the promised holiday, but also for their mental distress, frustration and disappointment as a result of breach of contract.
▸ The purpose of damages for breach of contract is to place the plaintiffs in the same position they would have been in if the contract had been performed, while the purpose of damages in tort is to place the plaintiffs in the same position they would have been in if they had not sustained the wrong. The result may be different depending on the basis of liability:
▸ If a testator by his will makes a gift to all his children, naming them, and some of them die in his lifetime, leaving children who survive the testator, the share that those so dying would have taken goes to their representatives; but, if the gift is to all his children without naming them, all goes to the children of the testator who survive him.
▸ A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice.
▸ A gift is a voluntary transfer of property to another without consideration, and typically, a gift has three elements: an intention to donate, an acceptance and a sufficient act of delivery.
▸ For certainty and security in commerce, it is essential that parties be able to rely on properly executed documents. It is expected that a person who signs a document will exercise reasonable care before doing so. Therefore generally speaking, a person who executes a document without taking the trouble to read it is liable on it and cannot plead that he mistook its contents.
▸ Every conveyance of real or personal property made with intent to defeat creditors or others of their just and lawful debts or accounts are void as against such persons and their assigns.
▸ Where an employer offers a constructively dismissed employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. The Ontario Court of Appeal has held that a reasonable person should be expected to do so "[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious.
▸ If a testator’s child, other issue, brother or sister dies in the lifetime of the testator and has issue alive at the time of the testator’s demise, that issue will directly receive the bequest unless the testator has shown a contrary intention.
▸ Duress, whatever form it takes, is a coercion of the will so as to vitiate consent…in a contractual situation commercial pressure is not enough. There must be present some factor which could in law be regarded as coercion of his will so as to vitiate his consent… it is material to inquire whether the person alleged to have been coerced did or did not protest; whether he did nor did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.
▸ We have a judicial system that emphasizes individual responsibility and self-reliance. Generally, parties negotiating a contract expect that each will act entirely in the party’s own interests.