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Listen to Will Challenge Litigation - Part 1

This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk

This week's episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Will Challenge Litigation - Part I - Hull on Estate and Succession Planning

Posted on August 19, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #127 of our podcast on Tuesday, August 26^th, 2008.

Ian Hull:  Hi, Suzana.

Suzana Popovic-Montag: Hi there, Ian. How are you?

Ian Hull: I’m great.

Suzana Popovic-Montag: That’s good.

Ian Hull: I’m very excited about our new format. This is our first video podcast. Now for those of you who enjoy listening to us on the audio, that’s still the same. iTunes is the same, nothing’s changed but we’re allowing to engage a little differently and a little more comprehensively. We’ve got some YouTube feeds that we want to encourage you to go to. Links to all of the YouTube feeds are on hullandhull.com and please feel free to give us any phone-in feedback at 206-457-1985.

Suzana Popovic-Montag: Or you can feel free to visit our webpage at hullandhull on the web and to leave us any comments or questions, concerns you might have.  And please, let us know what you think about this new format of ours as well. 

Ian Hull: We’re really excited about this and as I say, we’re going to have this entirely seamless so it won’t really matter how you’re coming to us, whether you’re video or audio. What we thought we’d like to do is step back a little bit from, we’ve had a great series on administering an estate and how to function as an executor.  Now we’re going to step back and go into our own mini-series on challenging Wills. And what we thought we’d do is we’d start off by looking at this from the chair of the client, so to speak. When someone comes to see us, our practice is trust, estate and capacity litigation. That’s our sweet spot. That’s where we’re doing most of our day-to-day work. So we’re dealing with Will challenges on a regular basis and it’s a big, big part of our practice. So we thought we’d talk about how and what you can expect in a Will challenge. So first of all, Suzana, what are we talking about when we say Will challenge?

Suzana Popovic-Montag: Well, Ian, what we’re talking about in this situation is when you’ve got someone who’s typically the client is someone who’s been cut out of a Will.  And so they’re coming to us because they say, you know, during mom or dad’s lifetime, I had expected that I’d be in the Will, they said I’d be provided for and suddenly they’ve passed away and I’ve discovered I’m getting nothing out of this estate, or, I’m getting less than I had expected out of this estate. And these situations are the ones that we talk about typically in these scenarios.

Ian Hull: So, they’ve either got cut out of the Will or you’re acting for someone defending the Will.  So that’s sort of two perspectives that come into play. Now for a little shameless self-promotion, we’ve got our book “Advising Families on Succession Planning: The High Price of Not Talking”, and this book, which you can get through our webpage, is really user friendly, explaining some of the core concepts, so there’s a good benchmark there. 

But today we’re also adding to our podcast series on the video side of course, a little bit of new technology at smarttech.com is the Smart Board.  And we’ve got this at Hull and Hull, and it’s a terrific tool, highly recommended and we’re going to be using it today on the video feed. 

So, we’re just stepping back now starting with the Will challenge itself. The first thing we’re going to do when we get to see a client who comes in and says, I’m terribly angry about the fact that I’m not in my dad’s Will or, I’m terribly angry that my sister is challenging my dad’s Will, his wishes, that’s what he wanted, I’m here to defend it.  Hull and Hull, what can you do to make that happen? The first thing we’re going to say to them is okay, take a deep breath, let’s look at the lay of the land.  And an important part of the lay of the land and a little homework you can do to save yourself some time and energy when you’re coming to see your lawyer about this if you’re looking into this kind of a problem, is make sure you know who’s involved. And we call it the family tree. And our first question is, who’s mom? Okay, we’ve got Betty and we’ve got Tom, the dad. And maybe there’s a second marriage over here. Tom, after Betty predeceased Tom, Tom ended up marrying Jane and they had three kids as well. And we’ll want to walk through that. And then of course, Betty and Tom from their first marriage, how many kids did they have? And they had one, two and three kids here, and then grandkids. 

Now we don’t want to underestimate the importance of making sure that you’ve got the lay of the land straight right from the beginning because if we don’t know that at the start, it creates all sorts of other problems at the other end of the law suit. And interestingly enough, Suzana, why is it that we’re going down to this level as well? When I say this level, the grandkids, why do I even care about that?

Suzana Popovic-Montag: Well the reason for that is because we want to be put in a position where we know everyone who’s involved. And so when you get to the grandkids, they’re typically minors, people who are under the age of majority in whatever jurisdiction you’re actually from. And so in these situations, it’s particularly important to know their dates of birth so that we can say how old they are in addition to who they are in terms of ultimately determining everyone who has a financial interest in the estate. And Ian, you can explain a little bit about what a financial interest means in these circumstances.

Ian Hull: For sure. And what we’re going to get to on our next page, we’re going to talk about is the background information to help us figure out who’s got financial interest. Because financial interest is one of the most significant questions. It’s a legal question. Who’s got a look in here? Who has the right to be involved in this law suit? Who has jurisdiction to be involved? I mean you can’t have the Prime Minister of Canada challenging every Will. You have to have some sort of direct link. And that direct link, with a lot of people they misunderstand and they don’t take advantage of some of the different angles and some of the nuances. So we sit down and we say, as we say, we get the family tree straight and then we sit down and say who else could have a financial interest? And we talked about a second ago, was this idea of a second marriage. Obviously that’s a financial interest that the second wife would have. But maybe not so obvious would be a girlfriend who may or may not have been around full-time, maybe is a girlfriend, maybe isn’t, maybe is a spouse, maybe isn’t. So you start to really drill down and work through that whole question of who should be at the table. Because we started off earlier talking about the family tree because if you don’t have everyone at the table from the get-go in these law suits, you create tremendous problems at the other end or as you work through it.

Suzana Popovic-Montag: And the reality is that not only family members are provided for in Wills. There may be other individuals who have been named as beneficiaries of an estate who are not family members and so we want to get that information from our clients so that they, too, can be at this table, as Ian says, for the purposes of dealing with the actual Will challenge.

Ian Hull: So our second screen that we’ve got up next is, it’s a blank screen that I’ve written a little bit on, but it’s Background. And you’d be surprised at how important a background is. And often when we see clients we want them to really sort of download some of the history, because the history will help us play out what some of the legal issues that are going to be involved. We’re going to talk about, and we probably won’t get into it today, but some of the core legal issues. But we want to focus on the background. We do actually want to know about the family and about the person who’s passed away because that will help us crystallize where we start, what direction we take in the law suit. 

So, we’ve got a couple of pages on Purpose on our Smart Board here, set aside for background information. After that though, after we’ve gone through the background, the next core step that we want to really make sure when we’re setting our table, we’ve got our knives and forks out, we’re getting our plates out now. We need to know what Wills are there. And when we say Wills, what are we talking about, Suzana?

Suzana Popovic-Montag: Well, we’re talking about in every jurisdiction there’s a different definition of what a Will is, but for the most part, we’re talking about someone who has put their testamentary wishes, their dying wishes in writing somehow on paper. And so the idea is to determine what is a valid testamentary document, what is a valid Will, so that we can determine if, in fact, the Will that’s brought to us is being challenged and we’re successful in that challenge, for instance, what happens to the estate? Then typically we’re looking at a prior Will, so we want to determine as much as possible what the Wills are that are out there, who’s provided for in each particular Will, because again, those particular individuals have a financial interest in the estate.  And then we take it to the next level and determine whether or not those documents are actually valid testamentary documents.

Ian Hull: Alright. So we’ve got a good sense that what we’ve got to do here and what our first step here is we’re going to want to do is really focus on testamentary documents and Wills and what we do with them because that’s the starting point of the whole law suit. 

Alright, so I think we’ve got a good introduction to the concept. As we say, this is going to be a mini-series on Will challenge and what we can expect and not expect when you get involved. So I want to thank Suzana because this is our first video feed that we’re trying out of Hull on Estate and Succession Planning. And please, feel free to e-mail us at hullandhull@gmail.com.

Suzana Popovic-Montag: Or of course feel free to call us at 206-457-1985.

Ian Hull: Thanks very much, Suzana.

Suzana Popovic-Montag: Thanks Ian.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

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