In 2000, my husband signed a marriage contract (we had been married for 14 years, and I could see problems ahead) in which he was to put $300,000.00 in a "Marriage Agreement Account" with Merrill Lynch.(A marriage agreement is stronger than a will because a will can be changed, and a marriage agreement can't.) My husband labeled the account, "His Name Estate Account." He said it had something to do with income taxes. In his will, he has stipulated that on his death this account is to be divided equally between his 3 children and me. At one time this account was worth approx. $600,000.00. Today, it is worth $275,000.00. I've found out last week that he has withdrawn, and continues to withdraw, money monthly for his own use. This balance divided by 4 beneficiaries = approx. $70,000.00 each. I have documentation going back to 2006 showing this activity. A statement for 2001 shows a balance of $345,828.00 in the account. I have an appt. with the partner of the original lawyer who drew up the Marriage Agreement. As Co-Conservator for my husband, there may be a conflict of interest here. His children are aware of contents of the Marriage Agreement and his will. Need your comments. Thanks.
But mary75 - you're in Canada, aren't you? Remember the law south of the 49th varies quite greatly from the laws in Canada. You would probably be best served to obtain advice from a Canadian estate lawyer.
A Durable Marriage Deduction Trust is a way to deposit proceeds from a sale, etc. prior to paying tax on them. This document will allow the originator of the trust to take out funds (at which time that amount becomes taxable) during his lifetime, and the remainder will be divided among the designated beneficiaries upon his death. This is legal and in no way would the Trustee removing funds from this account be considered inappropriate. (Texas)
Thanks, Bar-bra - yes, I'm in Canada and in your city, too. Nice if we could meet. Nancy B, hope the law is different here! The $300,000.00 was based on a fair distribution of assets - I brought in considerable money to the marriage.
Mary i agree you need an attys advice on this. i personally think it would have been better to do a tax deferred annunity in your name only or one for each beneficiary payable upon death. but looks like with him eating at it monthly you will have nothing left soon. i would make sure its him doing the dipping and if hes using it for his 'care'? sounds complicated at this point -divvi
Divvi, I was hoping you'd comment, and I agree with you. Thanks. My husband has done the dipping, but for his own uses. This is not out of character for him. As of this past year, 25 % of the income earned on the "Estate" account has been directed to the cost of his care facility. (His kids set this up when they held illegal P.O.A. for 2 months: Feb-Apr./08.). I have letters from the lawyer to my husband which make it clear that the "Marriage Agreement " account was to be clearly designated for me, and it was on this understanding that my husband signed the marriage agreement. I can't see the lawyer as soon as I'd like to: he only comes into Vancouver once a week, but I've made the earliest appt. available.
Mary, what about royalties? Can he assign his future royalities to you? The agent could have it in the contracts, so that it would be safe from the kids. I would have his work rebound and sold through the major bookstores in the United States. There are so many baby boomers who will love to read him, who haven't heard of him before. You would be a millionaire! <grin>
Hi Mary! Per marriage agreement, all royalties go to this children, as does all residue from his estate. I will have the matrimonial home. This $300,000.00 was for me. Now, what's left of it, will go 3/4 to is children. As Divvi notes, there could be nothing left if I, with the help of the lawyer, don't step in now.
Mary, if the kids reassigned monies due YOU thru an illegal POA then a good atty can reverse those illegally spent monies and try to regain them for you (with accrued interests that would have accrued) if it had remained in tact. even if that meant maybe replacing them with some of the royalty monies intended for the kids or some other means of finances he may hold for himself. if you have an assigned designated benefit amount due to and it was notorized and witnessed thru proper legal means i would pursue this to get whats your intitlement. he should not have had access to those funds if it was drawn up properly. they would have remained as separate funds and drawing interest all this time to your benefit. it would have increased the amount alot since 2001! get a good atty and see how he means to pursue your interests asap! every day you waste is less accruing --i would be livid if my DH did this after letting you think you had retirement set up. divvi
Divvi, exactly! I'm anxious to get this attended to as soon as possible, but have to wait for lawyer consultation appt. in 9 days. Still think it worthwhile to wait that time as he will have access to all the pertinent paperwork. But, come to think of it, I'll phone his office right now and ask if they'll put me on their cancellation list.
Mary i think that prudent. you are entitled to all that money. it would not be a difficult case. i was married to an atty:) if he has all the paperwork and it was funded correctly with documents i think he would be able to get you whats due- if you can supply him with the originals it will make it that much easier. plus the original poa naming you as entitled. if kids did one after that original i doubt it would stand up in court. plus they could be help liable for any monies lost if they did it illegally knowing dad was ill and already had a poa. the whole setup stinks in my opinion. you shouldnt have to start over after 20yrs. stick to your guns and let the atty know you want to pursue your monies -divvi
Divvi, thanks for extra hints, will put together my documents. You are great. You're all great. Attorney on vacation so can't get in any sooner, but will have everything ready. Off to see husband now.
mary be sure to have some documentation about WHEN/DATES your DH was diagnosed by his dr with dementia. that will prove up your original POA if they did the other one later on..divvi
Love ya, Divvi. Thanks heaps. Back from the visit and was able to act decently since you said you would be livid in same circumstances and that took off a load of guilt. Hadn't thought about your latest documentation of diagnosis (Jan. 07)and my original POA (about that time, too). I thought of asking for a printed record from Merrill Lynch (now CIBC Wood Gundy) for the activity in the Estate account from 2002-2005. I have figures for 2001 and from 2006 - Feb. 2009. Did speak to them twice since July when I got Co -committeeship. They said everything was fine, not to worry, but didn't supply any documentation
I worked with my DH in trials and on many cases and did alot of his grunt work. so i learned alot! and i have been running our estate for 15+yrs now and when you deal with all of it you dont have a choice- and my second husband had a genuine midas touch and very savvy business man-plus like mary, i have a similiar issues with regards to retirement holdings:)to boot, its just plain good judgement to become 'informed' about Everything that pertains to your future and well being and having your ducks in a row. and less we forget, three marriages..hahah.. live and learn, my motto. divvi
ps mary, by all means get printouts of the acct from inception to date!
Divvi, had just sent in my request in for the printouts this morning before I came here. I like your statement "become informed." That's going to be my motto from now on. "Okay, show me," is my new approach. I very much appreciate your help and expertise. I'd wondered how come you were so knowledgeable. You are a treasure. Don't feel so lonely knowing you're all out there with your help and support. Thanks, everyone.
Divvi, the more information I get, the worse the scenario. But at least I've put a stop to some of it, and I haven't even seen the lawyer yet. That comes on Tuesday, and I'll have all the documentation for him. Bet he'll be surprised I'm so well prepared!
good for you mary! nobody will make this happen but you, knowledge is powerful stuff:) having all the documents pertaining to your situation is going to make the situation easier for the atty to get a good feel on how to proceed and not lose valuable time. (and money) what i cant understand is why you didnt act before this got out of control. ie-when you found out the kids had done another poa. you will be asked why you didnt intervene right then! i know its complicated but hopefull you will get some good answers on tues appt. xxx fingers its good news.:) just to let you kn ow, not sure how it works in canada but here an atty can opt to charge hourly or do whats called contingency fee-which means he only gets paid if he is successful in regaining your monies. and then the usual fee for such is around 33.3 % here of what the recovery is. you may want to ask how long or complicated it may take and weigh both options. if its complicated the contingency may be more convenient and no money is lost unless he wins your case. my DH was expert at this :) and some cases lasted YRS. then if you have all the paperwork in hand and its easy then paying per hr may be best if you have the cash to pay as you go.. good luck! divvi
Divvi, to answer your point: "What i cant understand is why you didnt act before this got out of control. ie-when you found out the kids had done another poa. you will be asked why you didnt intervene right then!" I did act immediately. I didn't find out until the end of Feb. 08 when the bank phoned and told me my checks were bouncing. By the first of April, I had P.O.A. back, and in July 08, Co-committeeship, along with my husband's long-standing accountant, was granted to us by the Supreme Court of Canada. Thanks for additional pointers re. lawyers fees. I'm going to paste you something from an e-mail I got today from my husband's brokerage firm, and based on that, I think I can charge all lawyer's expenses to my husband's estate.
For Master Mind Divvi ( see above): Reminder, the acct. referred to as the "smaller account" is the one he then bequeathed in his will to his 3 children and me.
"When X originally set up the estate account, X split the account up so approximately 20% of overall non registered assets would be in the new account, and about 80% stayed in the larger account. He received his new statement the next month so it was clear we now would work with these two accounts over the years ahead.
He never gave me a copy of the will or marriage agreement at that time, but indicated to me the smaller account was money related to you and the larger account was money related to his three children. He then asked me to take 20% of the regular monthly income payments from the smaller account and 80% from the larger account.
Regarding larger withdrawals, he asked me to roughly do the same thing (in terms of percentage split) but to be flexibility in terms of this as we sometimes had better liquidity in one account or the other. X discussed this spilt with me periodically over the years at our 6 month review sessions and over the phone.
We have located a copy of a letter he requested we give him in 2002 confirming a conversation we had were he asked that I take out 25% from the smaller account and 75% from the larger account (with respect to both monthly withdrawals and a larger one time withdrawal of 36k). We will forward a copy of the letter to you.
We recently gave you the cash withdrawal figures from 2006, and you just asked that we now go back to the year 2000. We just completed the analysis and approximately 15% of the amount take out over the years came from the smaller account and 85% from the larger account, so it looks like the periodic adjustments (of how much came from each account over the years) favored slightly the smaller account over the larger account. My assistant will email this cash flow report to you shortly."
mary, i am confused to as what date the original marriage agreeement was signed. without knowing whats in that 'agreement' and how its worded it is hard to make comments. but you said the small acct was to be divided among you and 3kids. according to that setup sent 20% was designated to you and 80% for the 3kids. thats not equal shares or 25% equally but in favor of the kids to your 20% they get like 26.6%/ so you should re-read your original agreement and see if thats what it reads correctly. until dates are known WHEN all this was done both the original agreement and the brokerage acct setup its hard to know if he abided by the agreement or not. plus you should know if 20% was designated for you personally in the original contract, he should not have had access to that money but it should have remained as separate. depends on the dates i think if it was done correctly or not. the brokerage firm says he did not provide or tell them of any marriage agreement legal docs intending this money soley for your benefit. i still think it the marriage contract was signed prior to that brokerge firms acct then DH is on the hook for your money as originally stated in your contract arrangement. there also seems to be additional funds from other sources that could provide the makeup monies if its shown that he owes them to date plus interests. a signed legal document is legal tender and its not negociable as long as hes mentally competent when he signed. as far as the other business dealings you may have some case against as well if hes dealing with the brokerage co AFTER dx in 2007..his competency could be challenged -i think you may be right and able to charge the legal fees to his estate if they find in your favor. its all very complicated and depends on when docs were signed and how he 'asked for them to be distributed' and if he was within his rights to do so. ps if 25% of the estates income was designated to his care and facility where did the other 75% go of the estate monies?? i would track that as well. all i can say with the info you provided. i hope something can help you..ps remember i am NOT a legal professional but only giving my personal input..:) i am thinking if it were me in your shoes...:) divvi
Thanks again for your input. I very much appreciate it. It's complicated for sure, and I'll have to wait to see what the lawyer has to say about it on Tuesday. It will all come out in the wash, I'm sure.
Divine Divvi, I now have all documentation in order and whatever the outcome on Tuesday, I'll know I gave it my best shot, thanks to your help and everyone else who chipped in. Off to the gym to keep in shape.
good for you, best of luck! let us know how it turns out -divvi
funny you wrote divine divvi..haha. that is exactly where my name is derived from..spanish for 'la divina'.. means the 'divine one.'... my second husband named me that, justly of course in my opinion!-- haha...
I met with the new lawyer today and his summary: "There's no evidence of great fraud. There is evidence of 'fudging.' There needs to be a clarification of accounts and monies. This can be done through the joint Co-committees with your lawyer, but since you're one of the Co-committees, I have to check out the conflict of interest issue. I'll be in touch after the weekend." Divvi, he also said, throughout the meeting as he asked for information and documents and I produced them, "You are very well organized." And then, later, "Excuse me for being personal, but what were you in your other life?" "A Registered Nurse and a writer." "Oh, I thought maybe a lawyer." So I'm feeling good, and I'll keep you updated. Thanks, divvi, for a successful day in court.
thats hilarious Mary75! i am so glad you were well prepared. it makes THEIR job so much faster and of course less billing if you have your info upfront..ha! i would stil push to have those monies that are shown to be 'mismananged', ie "fudged. ie better =robbed.." replaced for your benefit exclusively. your DH has the finances and ability to make it right like it should be from the beginning. dont let them whisheywash you into thinking its ok..at the very minimum at least half of it should be returned to you! thats how arbitration works! let us know-good luck, xxx fingers, Miss Divine Divvi-esquire. :) cyber co -counsel
Thought I should update you all. The new lawyer and I are in the process of setting up a new account "in trust" for me with the original investment firm, and $320,000.00 is to be transferred there.It turns out that there is no conflict of interest, and the co-committee is in agreement that this be done. I'm sure there will be minor glitches along the way, but I anticipate, minor. Thanks to everyone for their input and especially Divvi for her "above the call of duty" expert advice. I think Congress should be approached about striking a special medal for her.
OH MY GOD!!! MARY75--- I cant stand it!!!!!!! sooooooo happy you stood with your 'metal spine' and took this on. my profound congratulations girlfriend!! wow. that will be a promising new start for you in your new life later. celebrate with a glass of champagne friend! divvi
Divine Divvi, can't tell you how much your words mean to me. One of the devastating things about this disease is how I seem to be fighting everything and everyone and most of the time. Few people, except on this site, say, "Hey, congratulations! You're doing a great job." My conclusion is that no one knows unless they've been here in our shoes, and no one cares as much about our loved one as we do. Also want to thank Bettyhere for her comment that she forgives all caretakers whatever they say or do. I blew up big time these past few days at those who were nibbling me to death "like ducks" (Grucho Marx). Then I told myself that Bettyhere understood, so the heck with it.
Went back to the independent lawyer yesterday (to avoid conflict-of -interest), and everything is in the works. I sent off the letter to the investment firm today requesting the new account to be opened under the name "Marriage Agreement Account" and specified the amount, $330,000. Also sent them an e-mail of the letter to come. (The letter was co-signed by the accountant who shares guardianship with me for my husband and was okayed by our lawyer.) I have since heard back from the investment firm, and there is no problem. They asked me how I wanted it set up. When I see it in the next statement from them, I'll drink a toast to you all, especially Divvi. Kinda tired, but it's worth it.
I should add that I've had a hard time accepting that my husband would do that to me. Finally got the insight that this is not uncommon for men to control through money. Actually, I think I got that after reading one of Divvi's posts to Joang about Sid's anger being about his lack of control re. driving. Another thing I thought of is that men of my husband's age - 89 - grew up thinking that they could do this. This was especially true in Canada, an Edwardian attitude. The two times I lives in the States, I was amazed that the American women didn't let the men get away with it.
As a new contributor to this message board very impressed...thought Divvi was JUST the Poop Queen...a woman of many talents! While Divvi gave such wonderful, priceless advice, it was you Mary who made it happen...you go girl! You are all one group of amazing spouses. ( And remember...men of our generation were all about the superiority of males and control to take care of their women...that's how they were raised. We now know better.)
Congrats, Mary75, on your hard-earned victory! I hope you have a good relationship with your investment advisor and that you trust him/her. Please take your time in deciding how to invest the monies. Don't know much about Canada's economy, but it's probably a global thing now that just about every investment is shaky.
I've read this thread today and just have to say I'm so glad things have turned out well for you, Mary75. Also just another thank you to those who offered such great help. Divvi, I know I will be much better prepared if I have to meet with lawyers.
The money issue was one of the major difficulties we had... about the general operating expenses and whose money was whose. All money was/is considered HIS. It was only with the help of several right here that I managed to route money to my own account. Now since everything is paid from this, DH is not seeing my signature on checks written from OUR checking account, things are much better. Only one bank statement comes to this address. The others come to my P.O. Box. I've met with our bank officials. DH's doctor sent a letter to the bank..and they also have a copy of the POA. Fortunately for now, these things are not such huge flaming issues. But thanks to many of you, I am much better prepared.
Mary75, I will feel better when you get a statement showing that all the money is in that account! Also, I'm praying that those step-children will leave you alone! I cooked them for you under "brats" <grin>
Mary, thanks for cooking the "brats." They are not quite done yet, but at least they are in the frying pan and pushed towards the back of the stove. All the paper work is not yet completed, but it looks as if there will be an additional 86K (Divvi, please note my increasing savvy) going into the new account for me, representing the investment income. I'll feel better, too, once I see it the total amount in the account. I went up the coast for 4 days to recharge my batteries. The Sunshine Coast of B.C. is a magical place and full of memories of teenage years there. It's a great boast to meet old friends from those years. The church is one my mother worshiped in. I need to step out of this A-D world and legal world and "brats" world long enough to know the other exists.