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Listen to: Examining Litigation in Ontario – Part 2

This week on Hull on Estates and Succession Planning, Ian and Suzana focus on Will challenges. More specifically, what a lawsuit or litigation would be like if those involved resided outside of Ontario. Issues examined include when more than one Will is left such as a primary and secondary Wills, what happens when someone gets married, summary judgments and costs.

If you have any comments send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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While some may find the contents of certain Wills frightening, there is one type of clause that has the name to go with the concept: the in terrorem clause.

In terrorem is Latin for in terror, fright, threat or warning.  An in terrorem clause is drafted to discourage frivolous Will challenge litigation by beneficiaries. The clause provides that if the validity of the Will is challenged by a beneficiary who receives gifts, that beneficiary’s entitlement to the gift is forfeited.

A condition of this nature imposed on a gift can be effective in avoiding litigation in situations where the testator wishes to leave unequal gifts among beneficiaries (his or her children, for example), which is likely to be perceived as unfair.

If a gift to a disappointed beneficiary is substantial, that beneficiary should be seriously dissuaded from a frivolous or spiteful challenge to the validity of a Will containing an in terrorem clause.

Such a clause should be limited to challenges to the validity of the Will and not to proceedings relating to interpretation or related matters over which the court has exclusive jurisdiction, otherwise the clause may be ineffective.

For some helpful discussion of the in terrorem doctrine see Bellinger v. Fayers 2003 BCSC 563 (CanLII). 
 

Sharon Davis - Click here for more information on Sharon Davis.

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Listen to: Orders Giving Directions in the Context of a Will Challenge

This week on Hull on Estates, Craig Vander Zee and Nadia Harasymowycz discuss orders giving directions in the context of a will challenge. A will challenge offers an opportunity at the beginning of a case to assemble the evidence and consider how it will be dealt with going forward. Things to consider include:
 

• Is mediation required?
• What evidence is known?
• What evidence needs to be obtained?
• How is that all going to happen?
 

There are also factors to be considered at the beginning such as projected costs and the value of the estate either known to be or thought to be.
 

If you have any comments send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
 

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
 

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When working with your legal colleagues, it is worth keeping in mind that we all have traits and characteristics that are a function of how and when we were socialized into the profession.

In "The Multigenerational Workforce, Managing and Motivating Multiple Generations in the Legal Workplace", Sally Kane posits the following about the various generations:

1. Baby Boomers (aged 46-64) hold positions of power and authority and comprise the majority of law firm partners and senior level executives. They are loyal and work-centric. High levels of responsibility, perks, praise and challenge motivate this generation.

2. Generation X’ers (aged 32-45) hold junior partner and senior associate positions in law firms and middle-management positions in corporate legal departments. They are ambitious and hardworking but value work/life balance. Diversity, challenge, responsibility and creative input motivate this generation.

3. Generation Y’ers (aged 21-31) hold entry level associate positions in law firms and corporate legal departments. They are creative, optimistic, achievement-oriented and tech-savvy multi-taskers who seek challenge and personal growth. Immediate feedback, praise and frequent communication motivate this generation.

According to an article by Robert Half Legal, the biggest benefits to a multi-generational workplace are that it:

• Brings together people of varying experience levels;
• Allows for greater diversity of project teams; and
• Allows for mentoring opportunities.

The biggest challenges are that the different generations have:

• Different work ethics and approaches to work life balance;
• Conflicting communication styles; and
• Different points of view, which make it harder to reach consensus.

Keeping these generational differences in mind could help you to understand and to work more effectively with a colleague or even a client.   

Sharon Davis - Click here for more information on Sharon Davis.
 

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In the hallowed halls of law school, contrary to what some “lay” people might expect, students are not taught “what” to think but rather “how” to think.  The law is a living thing and so for lawyers to truly add value they must be able to find and apply the law to their client’s particular circumstances and legal problem.

While being a specialist greatly assists the ability to know answers to the questions that pop up regularly in one’s area of expertise, we frequently find that there is a slight wrinkle in the facts that requires some research. 

The commercial services (LexisNexis and West) and the free CanLII are well used for case law, but there is no better place to start research than with secondary resources such as textbooks and journal articles.  Here are some online sources that that you might find useful:

• Irwin Law –  an online dictionary of terms from Irwin Law’s “Essentials Series” of textbooks; and 
• HeinOnline – an extensive digital collection of Canadian, US and International law journals as well as English Law Reports.  Free to members of the Law Society of Upper Canada.

For online guides to legal research in general, see:

• Catherine Best’s “Best Guide to Canadian Legal Research”, which provides effective strategies and techniques for finding and using secondary sources, case law, statutes and regulations, and legal research in other countries. You can also find tips on legal writing, comparisons of online case law services and suggestions for effective electronic searching; and
• Ted Tjaden's Legal Research and Writing, which is a companion site to the third edition of his book of the same name.  

Sharon Davis - Click here for more information on Sharon Davis.

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Business self-help books are legion.  And books chronicling the characteristics of the very wealthy (and how to be like them) comprise a good chunk of this category in your local bookstore. While our society's obsession with fame and perhaps just simple curiosity accounts for much of these sales, such publications contain useful advice which can inform anyone in business.

According to Joan Kane, a Manhattan psychologist, (as quoted in this article from forbes.com found on ctv.ca) "people who are very successful have an incredible sense of optimism.  They don't have the sense of limitations that most people have. There's no limit to their capacity to achieve and keep going. Age and family commitments don't deter them."

Billionaires "have a confidence bordering on arrogance that checks their fear and doubt--even as the bets grow larger and more complicated. Put another way, they have an uncanny ability to shrug off failure."

Suggested prerequisites for becoming a billionaire include the ability to answer "yes" to the following questions (inspired by Kane and executive psychologist Debra Condren and detailed in the above noted link):

• Can You Tolerate and Manage Ambiguity?
• Are You Willing To Make Tough Decisions For The Growth Of The Company?
• Do You Like Speaking In Public?
• Are You A Consensus Builder?
• Can You Delegate?
• Can You Deal with Isolation?

Have a great weekend!

David M. Smith - Click here for more information on David Smith.

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The Courts in England and Wales are gradually adapting to relatively new substitute decisions legislation (somewhat analogous to, but in many ways different from Ontario's Substitute Decisions Act).

In particular, the concept of "statutory wills" provides for a mechanism (in certain circumstances) where testamentary dispositions may be directed by a special court for incapable persons. Under the Mental Capacity Act 2005, which came into force in England and Wales in 2007, the Court of Protection must decide what would be in the person’s “best interests”. And some judges have decided that this includes how they would want to be remembered by their family:  “For many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will.”

As recently reported on-line in the Telegraph, this somewhat controversial application of the concept of "best interests" may inadvertently give rise to opportunistic relatives benefiting from an estate in which the now incapable testator would never have wanted such person to share.

David M. Smith - Click here for more information on David Smith.

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Alleging a forgery is one thing.  Proving it is another.  But it may be the surrounding circumstances, rather than handwriting analysis, that ultimately satisfy the trier of fact that a fraud was committed.

Consider a recent case reported in the British media.  A widow with a daughter and son left a Will and two Codicils.  Her spinster daughter, who had moved into her mother's residence in the years before her death, was found to have forged the Codicils.  Evidence led at trial suggested that the mother was suffering from Alzheimer's disease, and was confrontational with and suspicious of her daughter.

The deceased's original will divided her home and the rest of her estate equally between her daughter and her son.  But in a Codicil, she apparently wrote: “I wish my daughter to keep the house and everything in the house, and any remaining savings to be divided between my daughter and son... I am worried for my daughter’s future as she is unmarried and growing older and I wish her to feel safe here.” [emphasis added]. The second Codicil substantially echoed the first.

The trial judge concluded that the Codicils were forged and, even if not forged, were not made at a time when the deceased had the requisite testamentary capacity.

It may not have helped that the son of the deceased was a "spacecraft propulsion engineer" described by the trial judge as "practical and businesslike", while the daughter, representing herself, "struggled financially."

David M. Smith - Click here for more information on David Smith.

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Listen to: Examining Legislation in Ontario

This week on Hull on Estates and Succession Planning, Ian and Suzana talk about what a lawsuit or litigation would be like if those involved resided outside of Ontario. Issues discussed include knowing what to expect, what the system is about and how it works.
 

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.