Will Challenge wrap-up and Power of Attorney Litigation- Hull on Estate and Succession Planning #139
Listen to Will Challenge wrap-up and Power of Attorney Litigation
This week on Hull on Estate and Succession Planning, Ian and Suzana give a final comment on Will Challenge litigation and speak about their topic at the Canadian Conference on Elder Law in Vancouver; Power of Attorney Litigation.
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Will Challenge wrap-up and Power of Attorney Litigation – Hull on Estate and Succession Planning – Podcast #139
Posted on November 18, 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 139 of our podcast on Tuesday, November 18th, 2008.
Hi there, Ian.
Ian Hull: Hi Suzanna.
Suzanna Popovic-Montag: How are you today?
Ian Hull: Terrific, thanks.
Suzanna Popovic-Montag: That’s good.
I noticed I said you are listening to a podcast. Of course, some people may be watching as well and we hope that you are enjoying these podcasts.
Ian Hull: Absolutely. We’ve been watching our stats on YouTube and the numbers are growing. The audio still is the main source of our feed but maybe in another generation, we’ll be, YouTube will be the big number. But we enjoy doing these and we thought that what we’d like to do is sort of break this down into two parts today. The first part being sort of a final comment on the Will challenge process to talk about a recent trend. And then the second part of the podcast, hopefully if we have some time at the end, is to talk a little bit about our events that we’ll be attending at in Vancouver. The Canadian Conference on Elder Law which we’ll be speaking at and once this podcast launches actually, we will be having presented it.
So let’s just go back and we promised to sort of wind up our thoughts and our comments on the Will challenge process. Not to say that we’re never going to talk about it again but that was sort of our intense study. And we thought that we’d like to just mention one of the recent trends that are coming out of Will challenge litigation here in Ontario and I think its going to have a ripple effect, and that is, that more and more the Courts are starting to say, is there a way to short circuit this? The listeners and the viewers have seen how complex Will challenge litigation can be through our mini series. But you can imagine what’s involved in the context of litigation. So judges know that and in Ontario, some of the judges have recently started to speak out on cases, directly or indirectly, starting to say what is a way to short circuit the process?
Suzana Popovic-Montag: And the truth is, Ian, I mean, we see many times that even, and there’s no such thing as a basic or a simple Will challenge, but even a normal Will challenge will be anywhere from 3 to 5 days, could be longer depending on how complicated the evidence is or how many witnesses are being called. And so we can see this impetus for why Courts would want to short circuit the process to some extent, both from a cost and a time perspective.
Ian Hull: For sure. And so if you look at the economics of it, you run from it and you want to try to avoid it. But what the Courts are doing is they are saying, jumping in and they’re saying look, is there a way to have a summary judgment? Is there a way to say that the Will challenge simply should not go any further? And in that regard, the Courts are more open to than they were years ago, to the idea of coming in and saying okay, is there a short circuit decision we can make? Put your best case forward and if that’s not good enough, you haven’t met that level of expectation of the Court’s need to have a bona fide or legitimate lawsuit, then the Courts are going to say you’re kicked out of the box and you’re not going to go forward.
Suzana Popovic-Montag: Ian can you explain a little bit to some of our viewers who may not be familiar with the difference between a trial or a summary judgment process, what the distinction really there is?
Ian Hull: Well it’s a good point. I mean a trial is a case where you will call clients and you’ll call the evidence viva voce we say, or in the witness box, classic in the TV, you see the guy, the Perry Mason situation, you’ve got the witness there. You know, did you or did you not have that Will signed? And a summary judgment motion is a little different. You don’t typically have anyone, well you don’t have anyone in the witness box and you’re evidence comes in through Affidavit. And then it’s argued in front of a judge on the basis of the words as opposed to the people present.
Suzana Popovic-Montag: So then it really is the lawyer making the case for the particular party, giving the evidence and leading it, as you say, this Affidavit, the written submissions that are made to the Court to, as you say, to put your best foot forward in the sense that this is as good as it’s going to get, Your Honour. And hopefully this will make you confident in your determination one way or the other whether or not there is a valid or invalid Will challenge.
Ian Hull: So really I think, and to summarize and finish up on this point is, it’s just another tactical point we want to consider. Is there either, am I going to face that motion to kick me out of the box? Or am I going to have to bring that motion? And without getting into a lot of the nuances because that it could be in and of itself its own mini series, which we might pursue, is that its on the list of things to consider when you’re into a Will challenge, you’re beginning a Will challenge and to what extent the exposure is there.
So because we want to try to fit in some of our comments as well about our trip to Vancouver and we really have a great opportunity. We’ve been out to the Canadian Conference on Elder Law for a couple of years, three years now I think. And its one of the, it certainly is the best conference in Canada and probably one of the best in North America, to deal with elder law cases, elder law issues. We’ve been fortunate to be able to speak at the conference. We’ll have spoken again when this goes live. And our topic is one that we hope is well received and we’ll know once this goes live in that we approached the question of Power of Attorney litigation, and the types of cases that occur. And we’re going to sort of set out some of the cases that we have to watch for. And then we’ve started to say, okay, there’s the problem, what’s the solution? And overlaid a solution into it that we have seen in our practice, a very effective tool to resolving things. And that, of course, is really trying to create meaningful dialogue before the fight occurs. And that process is one that we’ve seen with some success where we’ve had a client who is approaching that gray zone of typically showing some signs of dementia, showing some signs of forgetfulness, maybe not looking after himself as well as he should be, maybe not eating as well, just general age-appropriate behaviour. And the family has come in and said look (a) we’re very concerned about where this is going and (b) we want to know where this is going, so that we’re not going to be met with a surprise when the mental frailty kicks in to a level that you can no longer manage your own affairs.
Suzana Popovic-Montag: That’s part of that process that we talked about, sort of that advanced planning and doing it with open dialogue, bringing the people who will ultimately have a stake or a say in it altogether at once trying to prevent what you always call sort of the train wreck that’s coming or could be coming.
Ian Hull: So let’s talk a little bit about that process. Although we’ve talked about it in the past, there is some fine tuning that’s done when you’re trying to do it in the context of Power of Attorney fights. Because while in an estate plan, you’re in an environment of typically healthy, vibrant individuals who all have a need and an interest in organizing a plan at a very sophisticated level, Power of Attorney planning with full communication isn’t always that easy because you’re often faced with an individual, the person whose got the mental frailty, who is not really in a state, and it may just be almost too late but you’re not too late, isn’t really able to deal with some of the complex issues or nor wants to. But really wants to make sure that the map is set, the table is set for someone to take over their affairs with efficiency and without a fight and without, you know, the brother saying geez, I can’t believe I’m not the Power of Attorney, and that kind of intention. So we’ve found at those meetings are typically, we try to narrow the focus down, as opposed to trying to look at the plan and unfolding tax issues and interesting inter vivos trusts and things like that to accommodate the family unit on a sophisticated level. We try to focus it down to alright, let’s get to the basics. Who’s going to be the Power of Attorney? What are they going to do? And let’s communicate that information to those that are going to be affected.
Suzana Popovic-Montag: And just to give some concreteness to the concept, Ian, who normally would call the meeting, or put it together, organize it from your perspective and your experience?
Ian Hull: Well just before we went away, we just finished up one that I was involved with where a good friend was worried about the neighbour. And he was the one who instigated the process, got the family together. They had a wonderful meeting in a business environment and it was made clear as to how things were going to unfold. So it can be almost anyone but as long as it’s set up and it doesn’t look like you’re trying to take away individual freedoms and dignity and so forth, they can be a very effective tool.
So anyway we thought it was worthwhile chatting about at the Canadian Conference on Elder Law and hoping that it went well at that point, but I’m confident it would.
Suzana Popovic-Montag: And I’m sure we’ll hear if it didn’t.
Well thank you very much Ian, and a kind reminder to our listeners and our viewers to feel free to provide us with any feedback you might have at hullandhull@gmail.com or feel free to visit our blog at estatelaw.hullandhull.com.
Ian Hull: Thanks very much.
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.
