MCkercher. Frequently asked questions

Everyone should have a will to ensure that their estate is distributed how they want. Contrary to popular belief, if you die without a will, the government will not take all your money, they will, however determine how your estate will be divided.

In addition, to making sure your estate is divided in accordance with your wishes, having a will also makes life easier for your survivors. If you were to die without a will, your family has to decide who will make the application for letters of administration (instead of probate.) In many cases your survivors will have more difficulty obtaining the required information to settle the will, mainly due to adherence to privacy legislation, which make financial institutions hesitant to communicate with people in the absence of a will appointing them.

Without lawyers, a real estate transaction can have the parties to the transaction can end up in a circular argument as to who is to act first. In most situations, a vendor does not want to provide transfer documents to a purchaser prior to getting the money from the purchaser, and the purchaser likely does not want to provide the money (or, if they have a mortgage, they likely cannot) until they receive clear title in their name.

The use of lawyers helps break the circular cycle. The lawyer for the vendor provides the transfer documents to the purchaser’s lawyer on trust conditions, a series of conditions which the purchaser’s lawyer must accept and meet prior to using the transfer documents, It is only upon accepting the trust conditions, and in doing so they promise payment will follow, that the vendor’s lawyer can use the transfer documents. If the vendor has a mortgage, the vendor’s lawyer’s trust conditions will include an undertaking, or promise, to payout and have the mortgage discharged from the title.

Commercial litigation involves legal disputes between companies, businesses and/or individuals in matters pertaining to areas such as fraud and preservation of assets litigation, breach of contract disputes, dissolution of business disputes, debtor/creditor disputes, securities litigation, shareholder/director disputes and derivative actions and trade-mark and intellectual property disputes.  While each commercial litigation issue varies, in the usual course, commercial litigation involves all the same processes that are undertaken in general civil litigation matters, such as, commencing or defending an action, filing interim motions, engaging in settlement negotiations, and proceeding to trial.

Credit lines are typically used to finance day to day operations of a business, such as inventory, receivables and day to day expenses. Credit lines will have a maximum loan amount established and the balance will go up and down as the business makes payments and withdrawals from the credit line facility.  The business will generally be required to make monthly interest payments on the outstanding amount.  Alternatively, a term facility is used by businesses to finance fixed capital assets such as equipment or real estate.  Term facilities typically require fixed payments of principal and interest over a specified term.  These payments ensure that the balance is repaid over a predetermined timeframe.

Property and civil rights fall under provincial jurisdiction in Canada, land and security interest registries differ from one province to the next. In Saskatchewan, there are, in fact, a number of different registries where secured parties register their interests. The particular registry will depend on the type of collateral that secures a debt or obligation. For instance, security interests taken in personal property should be registered in the Saskatchewan Personal Property Registry. However, when land is charged with an interest, that interest should be registered in the Land Titles Registry. Security interests taken in a debtor’s Crown dispositions, such as a Crown Potash Lease or a Crown Petroleum and Natural Gas Lease should be registered in the Mineral Administration Registry Saskatchewan or with the Ministry of the Economy.

The timely and proper registration of a security interest in many cases is necessary for perfecting the interest and rendering the interest opposable against other parties. McKercher LLP has advised numerous secured parties and security parties in commercial and financial transactions as to appropriate security and the proper registration of security interests. Please contact one of our lawyers for specific questions related to these matters.

Not likely.  Since the late 1800s, the Government has reserved the mineral and oil and gas rights when issuing title to property in Saskatchewan.  Some old property titles, or titles that were acquired from railways, were issued with subsurface rights and those remain today (about 20% of the Province).  Of course, you can obtain mineral or oil and gas rights by purchasing them from the current holder or the Provincial Government, if they are for sale.

The Provincial Government sells oil and gas rights by auction every two months.   Mineral rights can be “staked” or transferred through the government’s online MARS system at https://mars.isc.ca