Issue link: https://digital.canadianlawyermag.com/i/51536
make the conveyance. So you need an actual transfer to start proceedings before someone dies." Alternatively, some people might put the cottage into joint ownership with themselves and Child One and again, "if the others don't find out, there's nothing they're going to do about it now. But, if they find out, then you could start proceedings." Another scenario that could arise is making provisions in the will complicated with respect to the cottage. "They might put, 'The cottage shall be sold at fair market value and give my children the right to bid on it first or give one of them the right to bid on it,' which can cause difficulty or uncertainty," says Kirsh. "Okay, so we've got to value it at fair market value, but is it when the person died or six months later when this issue is coming up? And then you've got the children bidding against each other. "I don't know if that's the greatest idea," says Kirsh. "Another complicated way of dealing with it would be to hold the cottage for X years and say, 'I convey my cottage in trust to daughter Number One until she reaches the age of 30,' because maybe the others are older and you want to be fair to the youngest one because she didn't get as many years at the cottage. Upon her attaining the age of 30 then the cottage should be sold and divided between daughters One, Two, and Three." Says Kirsh: "That wouldn't go down very well with the B&W(7x4.875)_National Magazine CBA JulyAug 2011.pdf 7/12/2011 4:04:44 PM rest of the family," especially with the sibling who lives across the country but still wants to use the cottage on July 1 weekend but can't anymore because the youngest gets it exclusively now. "A will is a legal document and it doesn't say words to the effect, 'I'm giving the cottage to X because, c'mon guys, she's the only one who liked it, get real.' That's where some- times when you have these proceedings to set aside wills, you can get a court order for production of the lawyer's notes and that's when you see all the reasons," she says. Kirsh explains that the lawyer who's drafting the will takes notes to flesh out the issues, particularly if the parents have decided not to divide the estate equally, and are giving the cottage to one of the children. She says if a family meeting is out of the question, then a good solution is to ask that a memorandum to trust- ees, which sets out the reasons, accompanies the will. But remember: "For the person who didn't get the cottage, no explanation is going to suffice." At the end of the day, parents can do what they want with respect to their will and bequeath the cottage to X, but Kirsh says, "They should ask themselves, is that really what you want to do and do you understand Y and Z might not be happy about that?" That's why she advises that the best idea is for parents to divide their estate equally. C M Y CM MY CY CMY K 21