The Concept of Ethical Wills - Hull on Estates #138
Listen to The Concept of Ethical Wills
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss innovative techniques that add value to doing a will and powers of attorney. Specifically they discuss the concept of ethical wills and how they are different from a traditional will.
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The Concept of Ethical Wills - Hull on Estates Podcast #138
Posted on November 25th, 2008 by Hull & Hull LLP
Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 138 of our podcast on Tuesday, November 25th, 2008.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Ian Hull: Hi this is Ian Hull.
Suzana Popovic-Montag: And Suzana Popovic-Montag.
Ian Hull: And welcome to another episode of Hull on Estates. If you want to give us some comments, please do so at our e-mail address at hull.lawyers@gmail.com.
Suzana Popovic-Montag: Or, of course, you can visit our blog at estatelaw.hullandhull.com.
How are you today, Ian?
Ian Hull: I’m terrific, Suzana.
Suzana Popovic-Montag: That’s great.
Ian Hull: We have been talking in the past few months about different ways to work with our clients on estate planning. One of the things that we’ve noticed is that there are some really innovative techniques that are out there that really add some value to the process of not just the classic scenario where someone comes in and offers, you know, as a lawyer, you offer your services to do a Will and Powers of Attorney. But we’ve got some other ideas that we wanted to sort of banty around today.
Suzana Popovic-Montag: And one of those in particular that I find quite interesting is the concept of ethical Wills. And what an ethical Will is, as opposed to a traditional Will, is an interesting distinction because traditionally with a Will, what people will do is they’ll say this is what I have and this is who I want it to go to. The idea of an ethical Will, however, is that you are leaving behind a legacy of what you want people to know.
Ian Hull: And, you know, it really seems to us anyway, it adds some value to the whole estate planning process, isn’t a tremendous cost to the clients but helps get us to the point where we like to tell our clients and that is, is that don’t just leave a financial legacy, which of course will be well received by the beneficiaries. But leave an emotional legacy. And the concept of ethical Wills is not new to society generally. In biblical times, there were obviously techniques used in the Bible where different players in the process would leave messages for their families and guideposts of their families in terms of how to live and how to consider their lives. But in terms of a modern approach, one classic example of an ethical Will-like thing to do is to write your memoirs. I noticed recently Ted Rogers, the famous Ted Rogers, has published his own autobiography. And in it, he talks about a lot of things but it’s got to be a wonderful document just alone for his family to have, really his thoughts and his views on life and some of his experiences in life. So that’s one wonderful thing for his family. I know he didn’t write the book just for his family. He’s left his own ethical Will for all of us. I noticed an interesting point where in the book he talks about, you know, he’s asked who his idol in life is and he unhesitatingly says it was his father, who interestingly enough died when Ted Rogers was 5 years of age, his dad died when he was 38 years old. So one of the sort of dying wishes that appears from the book that Ted wanted to pursue was his buying back of CFRB from the family that apparently took it from under Ted’s father.
But the point is, is that it was a neat illustration to me anyway, of what would be a voluminous ethical Will.
Suzana Popovic-Montag: That’s a nice story, actually and it sort of underscores, as you say, a modern approach to this idea of an ethical Will, or I know in other jurisdictions they call it letters of wishes, or letters of intention, something like that. In terms of another example, one that sort of we’re classically faced with a situation where we’ve got a Will that will create a trust arrangement within it for perhaps the minor children. And it will have staggered payouts at let’s say 21 years of age, at 25 years of age and then at 30 years of age, the full capital and any accumulated interest gets paid out. And what people are doing in these situations is including when there’s an encroachment on capital or a payout on the capital, with the money that’s being paid to the beneficiary, trustees are also providing them with letters of wishes or letters of intention that were created by the settlor and passed down at these points in time to send along messages to the beneficiaries that weren’t said perhaps during a lifetime, or were being reinforced after death as well.
Ian Hull: And what’s an example of…so obviously we do our Wills now and we don’t know when we’re going to die. But in situations where we have clients that are unfortunately very gravely ill, how would that ethical Will, sort of letter of wishes, unfold?
Suzana Popovic-Montag: Well it’s something that is typically left with a trustee so that when a Will is provided to the beneficiaries or read to the beneficiaries, it’s something that’s found at the same time perhaps, or it could be somewhere else.
Ian Hull: So an example might be a young professional who may be faced with, your client might be faced with knowing that he or she is going to pass away soon and they want to make sure that these notes trickle out and maybe as you say tie into the distribution stages. They may also want to just have them trickle out at different times. I mean a classic example would be if you had young kids and you knew you had terminal cancer, you might say well look, here’s three sets of notes. One set I want to go to each of my kids when they turn 16; another set when they turn, I don’t know, 21 when the money comes out; and maybe another set of notes that come out when they get married or a significant turning point in their life. So there is a tangible way of doing this, you don’t have to be Ted Rogers to put this proposition to your clients. There’s a really tangible way of adding some wonderful sort of value to your legacy.
Now let’s just spend a minute here now just talking, a minute or two talking about what types of topics we might want to cover in the context of an ethical Will. And you know, maybe in this podcast or another one, we can talk about some specific examples. But we’ve told you some illustrations but what kind of topic headings would one want to consider putting in the ethical Will as opposed to writing a book like Ted Rogers did?
Suzana Popovic-Montag: Well the first one that comes to mind, Ian, is sort of a situation where you want to express love and care for family members or loved ones after the fact. Perhaps you’ve done it during lifetime or you’re doing it differently afterwards. And so that’s one of the examples that quickly comes to mind.
Ian Hull: So another thing that some of the examples that we’ve seen of the ethical Wills have been where someone wants to set out their statement of beliefs.
Suzana Popovic-Montag: And so religious icons or religious thoughts that are important to you are being transferred by way of these kinds of letters perhaps, attitudes towards death, attitudes towards life, values that you might hold dear to you or feelings that you’d like to express. Even something as sort of paternalistic or maternalistic as you know, how life should be lived by that individual could also be encapsulated in these kinds of Wills.
Ian Hull: And these moments of sort of documenting your views, its not just sort of flaky stuff. It can also become an important tool to guide the beneficiaries as they go through life, when they are enjoying maybe benefits from a trust or something like that as well. And, you know, a lot of Wills will deal with gratitude. They’ll say I give a gift of so and so to my caring, attendant caregiver or something like that. But these ethical Wills can also flush out gratitude comments even further and really spell out how the individual feels about someone who has played a special part in their lives.
Suzana Popovic-Montag: And similarly, if heritage is something that’s particularly important to someone, they could take that opportunity to also address that in this ethical Will or letter of intention as well.
Ian Hull: Alright, so why don’t we speak about some questions that you might want to consider to answer in your ethical Will. We’ve talked about the general concepts. Some specific questions we might ask ourselves if we’re going to do an ethical Will. And what we might want to put in it.
Suzana Popovic-Montag: Questions, Ian, I think would help sort of people formulate these kinds of Wills is things like who do you love that you haven’t told during your lifetime?
Ian Hull: And what, if you do take it that next question, like a good illustration was the Ted Rogers’ one, where who is the most influential person in your life?
Suzana Popovic-Montag: How about something like, who has taught you the most in your life?
Ian Hull: And just as a further to that, if we want to talk about who’s taught you the most in life, what was the lesson that they shared?
Suzana Popovic-Montag: Another one that sort of pops into mind is, you know, what would you have done differently in your life?
Ian Hull: That’s a great question. One that comes out of Ted Rogers’ book that I saw was interesting is that there was a real discussion on his part about what was his greatest accomplishment. And in his example, it was accomplishments, plural, but it’s a neat question to ask yourself and maybe put some comment down for your beneficiaries and your family to read later in life.
Suzana Popovic-Montag: From a religious perspective, you know, the question of is there anything that you need to confess before you die? And if so, what is it?
Ian Hull: Alright, so we’ve covered off sort of the gambit of both secular and religious questions you may want to consider. We think that this is an interesting proposition to put to clients. We know, from our practice in the contentious world, that it is a very useful tool, a wonderful legacy to leave for people. Sometimes not so wonderful if its in the negative, but most of the time its positive and well-received.
So as a drafting solicitor, its something else to consider in your arsenal of putting it to your client and allowing them to leave an expression, a little more plain English than the expression that is set out in a boilerplate Will.
Suzana Popovic-Montag: And with that, Ian, I think that brings us to the end of this week’s podcast. Thank you very much to everyone who is listening. And thank you, Ian, for joining me today.
Ian Hull: It’s a pleasure and look forward to doing our next podcast. Again, please feel free to visit our blog at estatelaw.hullandhull.com where you’ll find more information and discussion about the ethical Will and our practice of law.
Suzana Popovic-Montag: Thanks very much, Ian.
This has been Hull on Estates with the lawyers of Hull & Hull. 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.
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