Everyday Legal Problems

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“You assume all risks, even if arising from our negligence."

You may have seen a statement like this when taking part in an activity. It is an attempt to limit legal responsibility. It is often called a waiver of liability or a release. Such statements are not always enforceable, even if they are in a contract or on a clearly visible sign.  

Here are five things to know about statements limiting liability, aka waivers. 

1. A service provider must take reasonable care of your safety

When you contract with a provider of services, the provider must take reasonable care of your safety. This is called an implied warranty. A warranty is a promise.

The provider also has a duty of care to be a reasonably careful provider. This means they have to use “reasonable care” when dealing with you. “Reasonable” means what a reasonable person would do in similar circumstances.

Some service providers try to limit these legal responsibilities. They use a waiver of liability to protect themselves from responsibility for any injuries you suffer. The waiver often tries to protect the provider even when their negligence (that is, their failure to take reasonable care) causes the injury.

For example, a provider might have you sign a form that says:

"I agree to waive any claims that I may have against the service provider from any and all liability for any loss, damage, expense or injury, including death, that I may suffer as a result of my participation in the activities, due to any cause whatsoever, including negligence on the service provider’s part."

2. With a waiver of liability, a service provider asks you to give up a right

With a waiver of liability, a service provider asks you to waive—or give up—a right you would otherwise have. By signing the waiver or even just taking part in the activity, you agree to give up your legal right to sue them if you suffer harm during the activity—even if the harm results from their failure to take reasonable care.

Such a waiver of liability may be found in a contract, on a ticket, or on a sign at the site of an activity.

Such waivers are often required in order to take part in an activity. You find these waivers at ski resorts, amusement parks, rock-climbing venues, and extreme sports activities. You even see them used with ordinary organized sports such as softball or soccer leagues.

3. Waivers of liability are not always enforceable

Waivers of liability in sports and recreational activities are designed to protect the organizers from responsibility when their negligence causes an injury.

Such waivers are not always enforceable. For a waiver to be valid:

• the provider must take reasonable steps to bring the waiver to your attention before the contract is made, 
• the provider must “bring home” your understanding of the waiver, and 
• the waiver must be clearly stated.

4. Three factors influence whether a waiver of liability is valid

For a waiver of liability to be valid, three factors are influential.

The provider must take steps to bring the waiver to your attention 

For a service provider to rely on a waiver of liability, it must take reasonable steps to bring the waiver to your attention before the contract is made.

For example, a ski resort cannot rely on a waiver posted on a sign at the top of the ski hill. You won't even see the waiver until after you purchase your lift ticket. However, if the waiver is on the ticket and brought to your attention when you buy your ticket, the ski resort may be able to rely on it.

The provider must "bring home" your understanding of the waiver

It is not enough for the waiver of liability to be in a standard form contract that you sign. The service provider must draw the waiver to your attention or explain its legal effect to you. Whether the waiver is in a contract, on a poster on the wall, or on the back of a ticket, the service provider must take steps to "bring home" your understanding of the waiver before they can rely on it. 

They can bring the waiver to your attention by (for example):

• having you initial the waiver clause in a contract,
• placing the waiver clause in large bold print, or
• explaining the legal effect of the waiver to you.

The waiver must be clearly stated

A waiver of liability that is clear and easy to read is more likely to be enforceable. A waiver is less likely to be valid if it:

• uses a lot of legal terminology,
• has long sentences, and
• contains repetitive language. 

5. It doesn’t matter whether you have read the waiver

Under the law, when you sign an agreement, you are bound by it whether or not you have read it. With a waiver of liability, it doesn’t matter if you didn’t read it or didn’t know its contents. So long as you sign the waiver, you can be bound by it if the waiver is valid. 

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A will is a legal document that says what the person making the will wants done with their property and obligations after they die. By making a will, you can ensure the things you own go to the people you want to have them. As well, your loved ones can feel confident they are carrying out your wishes.

Why you should make a will

"I've decided I need to make a will. Both my sisters want me to leave my opal ring to them. The ring originally belonged to our mother, and is a family heirloom. I can now see that unless I'm very clear in my will about who should have the ring, there will be family conflict later." 

– Maria, Nanaimo

When you die, your property and obligations form your estate (with some exceptions explained below). Making a will gives you some control over what happens to your estate after you die. With a will, you can make sure the things you own go to the people you want to have them. 

A will can also help the people who outlive you. They can feel sure that they are carrying out your wishes. Putting your intentions into a will can help save your family members and those you leave things to time, effort and money. 

If you die without a will, what happens to your estate

If you die without a will, there is no way to prove what your wishes were. The law dictates how your estate will be divided. The rules are set out in the Wills, Estates and Succession Act.

For example, if you have a spouse and no children, your estate passes to your spouse. If you have a spouse and you had children together, your spouse gets the first $300,000 value of your estate and half the balance; the other half of the balance is divided equally among your children. 

There are further rules depending on the combination of relatives alive at the time of your death. The estate goes to the government if no relatives can be found.

Another result if you die without a will is that the court has to appoint someone called an "estate administrator" to deal with your estate. That person, usually a spouse or child, needs to file documents in British Columbia Supreme Court that ask the court to appoint the person to administer the estate. 

If there is no one who applies to administer the estate, then the Public Guardian and Trustee takes responsibility.

How a will is different from a power of attorney or representation agreement

A will takes effect only after you die. A power of attorney and a representation agreement are ways to plan for the handling of your affairs during your lifetime. 

With a power of attorney, you can give someone the legal power to take care of financial and legal matters for you while you are still alive. (Learn more.) With a representation agreement, you can give someone the legal power to take care of health care and personal care matters. 

Both a power of attorney and a representation agreement cease to have effect when you die.

You don't have to make a will

The law does not say that you have to make a will. However, by making one you can make sure that your wishes about inheritance are respected.

"My sister Susan died without a will. A year before, she told me what she wanted done with the things she owned. Her wishes included giving her car to me. But without a will, the law says how the estate is divided. In Susan’s case, everything in her estate will go to her only child, Amy." 

– Janet, Vernon

What a will should include

A will doesn't deal with everything you own. A will generally doesn’t cover property that you don’t own exclusively. For example, a joint bank account or a house owned in joint tenancy has a "right of survivorship". When you die, any jointly owned properties will automatically become the exclusive property of the other joint owner. This property doesn’t form part of your estate. 

Also, property where you have designated a beneficiary doesn’t form part of your estate. The beneficiary is entitled to receive the proceeds on your death. Common examples include a life insurance policy or a retirement benefit plan. 

If you decide to make a will, learn the steps involved in making a will.  

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An executor is the person named in a will to carry out the instructions contained in the will. If you are asked to be someone’s executor, learn what’s involved in taking on the responsibility. Here are seven common questions about being an executor.

What's involved in being an executor?

When the person who made a will (the will-maker) dies, their property and obligations form their estate. The will names a person—the executor—to deal with or “settle” the estate. The executor locates all of the will-maker’s property, pays any debts and the funeral costs, prepares the final tax return, and then distributes the rest of the estate according to the instructions in the will.

Being an executor takes time, energy and careful attention to detail. An executor can get help from friends and family members and also from professionals such as a lawyer or accountant. However, the executor is the person who is legally responsible. An executor makes the decisions, watches over everything, and needs to keep accurate records.

How difficult is it to be an executor?

Acting as an executor can be relatively straightforward if the estate is modest; for example, if the estate consists of a car, a house, some personal belongings, and a bank account.

But being an executor can become challenging for many reasons. For example, the job may be more difficult if:

• there are many people named in the will to receive gifts of money or property
• the will-maker has extensive investments or debts
• the will-maker owns a business
• the will includes a trust, where part of the estate is set aside to provide ongoing income for someone
• the will is challenged by someone who feels left out of the will

You should only take on this responsibility knowing that the task may be time-consuming and stressful.

If someone asks you, do you have to act as their executor?

No. If someone asks you to be their executor and you don’t want to do the job, you can say no. 

You can also decline or “renounce” an appointment as executor after the person has died. However, if you have started dealing with any property of the estate, you are legally bound to continue, and you can only be relieved of being the executor by a court order after accounting for what you have done in the meantime.

Can an executor claim a fee?

"I was executor of my mother’s estate. It was quite simple because she had distributed many of her possessions before she came to live with us. I didn’t take a fee for being executor because it was for family and it didn’t take long to do the job." 

– Helen, Richmond

Yes, an executor can claim a fee for their time and effort. Sometimes the will states the executor’s fee. If the will does not set out any fee, the executor may take up to:

• 5% of the gross value of the estate,
• 5% of the income of the estate (money earned by estate property after the will-maker dies), and
• .4% per year, based on the average value of the estate under management, for a care and management fee.

The amount depends on how much work is involved and whether the executor hires professional help or does it all on their own.

Often an executor doesn't accept a fee. This is common if the executor is a spouse, family member, or close friend.

If there is more than one executor

If there is more than one executor, the fee is split, but not always equally. The division of the fees depends on who does the most work.

If the executor is a beneficiary under the will 

An executor who is named as a beneficiary under the will may claim a fee in addition to what the will gives the executor as a benefit, unless the will says that this cannot happen. Sometimes the will leaves the executor a special gift (such as jewelry, money, or real estate) for doing the job of executor. In such a case, the executor can claim a fee as well, but only if the will says so. The executor may prefer to take a gift rather than a fee because a fee is taxable but a gift under the will is not.

Out-of-pocket expenses

Any out-of-pocket expenses the executor has while administering the estate are paid for out of the estate. Examples of out-of-pocket expenses are search fees, photocopying, and postage.

Can more than one executor be named?

There may be more than one executor named in a will to act at the same time. If there is, the co-executors must act jointly. Neither is the "lead" executor or "main" executor. The co-executors have to agree on many things, from the selling price of the house to who is going to get the family photo albums.

If co-executors cannot agree, the administration of the estate can not move forward. For example, if one executor wants to sell the house and the other disagrees, there can be no sale. If co-executors have serious disagreements, they may need to contact a lawyer or go to court to resolve the conflict. 

If the administration of the estate cannot move forward because the co-executors disagree, the beneficiaries may also go to court and seek removal of the executors for failing to act appropriately.

How long does it take to carry out the duties of executor?

In general, it can take about one year to complete the work of executor for a straightforward estate. This is commonly referred to as the “executor’s year”.

That said, there is no set time when the responsibilities of the executor are finished. The executor remains responsible for looking after the estate, even after the estate property has been distributed to the beneficiaries under the will. If assets or debts turn up years later, the executor will still be legally responsible for dealing with them. The executor’s role is only finished when the court formally discharges the executor.

Can the executor get help from professionals?

Many executors do the work themselves, while others hire a lawyer or an accountant to do some or all of the work. Typically, executors hire a lawyer to handle any business interests left behind by the will-maker. Most executors hire an accountant to prepare the tax returns; some hire an accountant to prepare the estate accounts.

Most estates where there is real estate or bank holdings require a legal procedure called "probating the will". This procedure confirms that the will is legally valid and can be acted on. The probate process, explained here, can be difficult and most executors hire a lawyer to prepare the necessary documents and to guide them through the probate procedure.

Professional fees are paid out of the estate, as long as they are reasonably incurred.

If you agree to act as an executor, make sure you have a current copy of the will. Keep it in a safe place where you can find it easily. Also make sure you know where the original will is kept.