Today on Hull on Estates, Natalia Angelini and Noah Weisberg speak about the recent CLE program, “Advising the Elderly Client”, and more specifically on a paper written by Margaret E. Rintoul titled “Tax Planning for Estates: You Can’t Always Get What You Want”.

If you have any questions, please e-mail us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Natalia Angelini 

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag discuss a recent presentation they made for the Law Society of Upper Canada.  The topic of discussion was how to prepare for an audit on an estate. Additionally, they discuss the matter of compensation.

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag discuss "LinkedIn and Blogs for Lawyers", a book by Adrian Dayton and Amy Knabb. Additionally, Ian and Suzana address Passing of Accounts and the importance of Fiduciary Accounts.

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag add to the Hull & Hull recommended reading list with their suggested read - "Smart Thinking" by Art Markman. A great book that uses problem Solving as an innovative way to get things achieved.
Ian and Suzana also share some exciting changes that have recently been made at Hull & Hull LLP. More specifically, they discuss their new "Synergy" rooms and explain how they have been applied, as well as discuss how they will improve your estate planning needs.
If you have any questions or comments, please email us at hull.lawyers@gmail.com or leave a comment on out blog at estatelaw.hullandhull.com

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag give an overview of the book "With the Stroke of a Pen, Claim Your Life" by Jane Blaufus. This book is based on Jane's personal experience with the loss of her husband. In this episode, Ian and Suzana examine the "Courageous Questions" asked by Jane, questions they feel are associated with the day to day issues of estate planning.
If you have any questions or comments, please send us an email at hull.lawyers at gmail.com

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag ring in the New Year with an update to our Reading List. The book of focus is written by Dr. Steven R. Covey called "The 3rd Alternative," a reading that discusses various aspects of problem solving.  More specifically, Ian and Suzana apply the lessons of this book to issues in estate planning, those who mediate and those who litigate. More simply, he asks the question, what is the 3rd alternative?

This week on Hull on Estates and Succession Planning, Ian Hull asks the question - What should one do with their estate plan in 2012? More specifically, he discusses Will basics and Will basics planning. If you have any questions or comments, please visit our blog at estatelaw.hullandhull.com or email your questions to hull.lawyers@gmail.com

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag add to our Hull & Hull LLP recommending reading list with the book "Cross-Border Family Mediation". This book touches on cross border family mediation in regards to custody and access issues. Ian and Suzana also discuss holograph wills and the issues that surround them, particularly in Canada, and canvas where they may occur.

If you have any comments or questions please visit our blog at hullestatemediation.com or send us an email at hull.lawyers@gmail.com

For more information on Ian hull, click here
For more information on Suzana Popovic-Montag, click here

This week on Hull on Estates David Smith and Nadia Harasymowycz discuss the definition of "Child" and its application in the Estates field with a review of the British Columbia cases of Hope v. Raeder Estate and Peri v. McCutcheon.

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

Click here for more information on David Smith.

Click here for more information on Nadia Harasymowycz.

This week on Hull on Estates and Succession Planning, Ian Hull discusses Wills and Non-Tax Issues related to estate planning. More specifically, he touches upon the special nature of married spouse claims and common law spouse claims. If you have any questions or comments, please send us an email at hull.lawyers@gmail.com or leave us a comment on our blog at estatelaw.hullandhull.com

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss our most recent Breakfast Series Presentation which was held at the Ontario Bar Association facilities on September 22, 2011.  Additionally, they touch upon the recent decision Hope v. Martin ONSC 5447 (CanLII)

If you have any comments or would like more information on our Breakfast Series Presentations, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

For more information on Ian Hull click here
For more information on Suzana Popovic-Montag click here

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

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss a fairly new investment vehicle that has been set up by the Canadian Government to allow for Canadians with disabilities and their families to save for the future.  More specifically, this podcast discusses how one can use this investment fund as an estate planning tool. 

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

For more information on David Smith click here.

For more information on Nadia Harasymowycz click here.

Listen: Understanding the Role of an Executor

This week on Hull on Estates, Ian Hull discusses the role of an executor and how you can anticipate problems that may arise.

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.

Understanding the Role of an Executor - Hull on Estate and Succession Planning #222

Posted on February 15, 2011 by Hull & Hull LLP

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

Ian Hull: Hi and welcome to episode 222 on Hull on Estates and Succession Planning. 

Welcome back. I’m Ian Hull doing a solo podcast today without my compatriot, Suzana Popovic-Montag. Today is episode 222. It’s a great show that some of us of my vintage remember, Room 222. So it had a nice resonating history to it and I wanted to speak about a topic that ties into that historic show in the sense of this, and that is, is that we went to class, we watched 222…Room 222 when we were kids and as young teenagers and it taught us to understand and appreciate leaders, and leadership through education. Taught us to respect our teachers and some we didn’t respect and some we did. Sometimes we were wrong; sometimes we were right. Probably didn’t know until many years later. It ties into the same theme in my view as to being an executor. It’s an often criticized role and it’s easy to, as my dad used to say, it’s easy to kick down sandcastles – it’s not so easy to build them up.

And like every executor has, is that when they get the job of executor when someone passes away, the beach is flat. There are no…the water has been just waving across the rocks and the sand is flat and maybe not even wet enough to build anything with. Well the executor has to go and start from the beginning and building the sandcastles. And we often and too often in my view, see beneficiaries who just turn around and try to kick down the sandcastles as opposed to admiring them and respecting the work that they’ve done. Having said that, that’s life. And if you’re gonna take on the job, it comes with its own warts, so to speak. And we’ve been talking about in this series, in this mini-series, about some of the warts and some of the problems that executors run into with a view to trying to anticipate them and anticipate where you’re gonna get poked and prodded and complained about. 

One of the easy things that I think is easily addressable is the whole question of the bank accounts. Early on, you’re gonna be required, as an executor, to determine the nature and extent of the bank accounts of the deceased. We tell our clients, please make some sort of list, even if it’s a photocopy of the bank statement that sits in a safe area where when you pass away someone can at least match up what institution, give some lead to the bank and so forth. Sometimes what helps is that when we ask our clients to draw Wills, we’ll say to them look, we want all this information about where your banking is, even the bank account numbers, so that it’s a record that should the executor come to us and say I don’t even know where my great uncle banked, I’ll have a note of it at least. Starting points. Leads. 

But having said that, once you’ve identified it, we have an obligation to create our own estate account which we’re gonna talk about. But this is about pulling in assets at this point. We’re in the early stages. The water is just still rippling across the sand and we’re still trying to get our feet wet and determining whether the sand is too dry to build our sandcastle up or do we need to add some water to it. And so what we’re often faced with is, is what bank accounts exist and where are we gonna find those and locate those. There’s some Internet searching that’s available as well in most jurisdictions, a very easy one. One of the interesting searches that you can undertake is to look at old accounts through the Bank of Canada to see if the deceased just left money in an account that went dormant. But let’s just talk about easier ideas, sort of the low hanging fruit accounts. And those are the ones you kind of knew that they always banked at a certain bank and you’re gonna be able to find that out because if you show the bank the Will, they’re gonna give you that information. And in so doing, we’re often faced with the problem of it may or may not be in the form of a joint account. Now we have spent time over the years in our podcasts and we will continue to talk about this issue in some level because the Courts still struggle with it. But a joint account is a very classic estate planning technique and so as an executor if I come into this role and I meet a joint account issue, those are the sorts of issues that I want to seriously consider and probably seriously consider getting some legal advice or some help from my financial advisor or accountant as to how to deal with that joint account. But identifying the nature of the account, solo or joint, is a crucial, initial step that again, when we see attacks on an executor’s role and their duty, those are easy, low hanging fruit attacks as well in the sense that we see it too often, that the executors didn’t move quickly enough to determine the nature and extent of the assets in the context of bank accounts. Do determining if there are any bank accounts is vital.

The other sort of…now there are dramatic illustrations of this…but the more simple estates and the more straightforward estates are, we’re obligated as executor to really determine what the liabilities are. And it is sort of like chasing the bank accounts. It’s finding out what Visa cards are out there, what car leases are out there, what day-to-day automatic withdrawals are coming out of the account and for what purpose. And nature and extent of the liabilities is a core element of expectation of the executor.  So again, we sit back and we say well where can we enhance our position with the beneficiaries, so that they’re not making attacks on us? Well we can show and document to the extent that it’s necessary…maybe a memo or a note…I went to these banks.  I did this to find out the bank accounts.  I determined their status, joint or not, or otherwise.  I’ve determined if there is a corporate bank account, if there’s a private held company.  I’ve determined that these are the liabilities that need to be addressed right away.  And whether they’re funded through the bank account and the estate bank account is for another day and how we do those mechanics are for another day. But often it’s the itemizing, allocating and organizing of both the in assets and the out assets, so to speak. The in – finding the bank accounts; the out – paying the liabilities.  That we see a lot of attacks on trustees unnecessarily if it’s done in an organized, efficient…and when I say efficient, that means timely as well. Because the Courts have consistently said if you’re not timely with these things coming out of the gate, you are going to be susceptible to criticism.  Whether you should or shouldn’t be is another day and that’s for another lawsuit and it depends on the facts. But it is a very fundamental and basic organizational tool to expect of an executor and it’s an easy area to defend if you’ve done it right and you’ve identified it in a meaningful way.

So tomorrow we’ll talk a little bit about...the next podcast we’ll talk a little bit about what we’re gonna do with that in and out information and what our expectations are. But I wanted to cover the sort of basic parameters and the expectations I think that touch on our leaders, and those leaders being the executors. And coming back to my Room 222, the leaders are the teachers in our classroom or the people around us or the people that are prepared to take on roles such as executor.

So thank you very much for joining me this week. I’m missing Suzana and I apologize for her non-attendance and we look forward to our next podcast. Thank you very much.

You have been listening to Hull on Estate and Succession Planning by Ian

Hull and Suzana Popovic-Montag. The podcast that you have been listening

to has been provided as an information service. It is a summary of current

issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

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

Listen: Why - Part 3

This week on Hull on Estates and Succession Planning, Ian continues his discussion on "what" it means to be an estate trustee and "why".  Specifically, he talks about dealing with and protecting special assets.

Ian continues his list of Duties for an Estate Trustee continuing with:

4. Dispose of perishable assets and secure and protect all other assets including business interests and rental properties.

5. Review insurance coverage and obtain increased or additional coverage of the assets where necessary.

6. Determine and list the names, addresses and ages of beneficiaries and notify them of their interest.

7. Determine the nature and value of the assets and debts of Louis, an inventory of the Estate, and arrange valuations where necessary.

The “Why” series was spurred by the book Start with Why By Simon Sinek which can be found in the Hull & Hull LLP Reading Center. 

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.

Why – Part 3 - Hull on Estate and Succession Planning #221

Posted on February 1, 2011 by Hull & Hull LLP

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

Ian Hull: Hi and welcome to Hull on Estates and Succession Planning. Well welcome back. I’m Ian Hull and I’m doing a solo presentation here without my colleague, Suzana Popovic-Montag who will be back into the loop soon.

We wanted to continue on our mini-series about I’ll call it the “what” and “why”, but the “why” and “what” probably more accurately, of being an estate trustee.   We’re gonna build a list of not everything. We’re building a list, hopefully in order that makes some sense, of what the duties of an estate trustee is over these podcasts. And the last podcast we dealt with some of the preliminary considerations, dealing with the body and issues where you have to deal with immediate concerns, as dependents that have to be addressed like small children and so on. I want to move on to my next one and again, we’re gonna be posting these as we work through them.

Our next one is dealing with special assets and dealing with and protecting those special assets. And in those circumstances I’ll often say to my client who is an estate trustee and appointed as estate trustee, go into the house or go into the condominium and take a video camera, film everything as soon as possible, so that you can have a record of the assets, the personal items, the perishable items, things that may need immediate attention. But the specific home contents and so on. They can be such a lightning rod of complaints. Later on someone’s gonna say I always wanted that chest of drawers, where did it go? And you’re sitting there saying, look I was really busy dealing with everything else, I didn’t really notice Uncle Fred took it, or I don’t even know who took it. It was a busy day, there was a bunch of people around the house. 

Anyway it’s just a helpful tool to help you describe and identify just what those contents are. And it’s a bit of an urgent and an immediate requirement as a duty of the trustee. I mean, you’re obligated as a trustee to bring in and distribute all of the assets of the estate. That includes the tea cups and the tea cups can be a very…unfortunately a vital source of very contentious litigation. So that’s an alternative. We also recommend strongly…we use some of the auction houses like Waddington’s. They’ll come in and they’ll make a whole list of the items right down to the pens and paper in the living room, put a value to it and as a locked inventory. An inventory that can be crucial in the context of all of the administration of the assets. And it’s not a difficult task, so one that I strongly encourage my executors as a duty to focus on early and do it right so you’ve got a record of the contents.

Now we don’t want to underestimate…and again we’re working through a list of duties in the sense that, you know, I’m trying to do it as chronologically as I can but this isn’t the be all and end all of lists. It’s just hopefully a good starting point.

The next one is reviewing insurance coverages and obtaining necessary increases. Often, in some cases anyway, you’ll have an estate that has artwork in the house. So you want to make sure, and I tell my clients make sure we’ve got full coverage. The house is now only being watched every day with a person coming by, you check with the agent. Maybe even secure those assets. Get that artwork out of the house in case there’s a break-in. So if it’s secured in a locked facility, a storage facility of some nature or something like that. But consider, you know, what coverage there is and increase that, if necessary. And I’ve had cases where the deceased simply just underestimated or was too lazy to value their insurance and in the living room happened to have a Group of Seven painting that was insured for a modest amount. You know, you as an executor, need to come in, move quickly and assess that and determine with certainty whether or not the insurance coverage is there.

The next item…I think we’re at about item 6…is determine a list of the names and addresses and getting a hold of all of the beneficiaries. And this is one of those situations where I strongly encourage my clients to leave us a hint, give us some help here. If it’s your long lost cousin in Scotland that you’re going to be giving money to or that famous chair in the corner, help your executor…I tell my clients to make sure we’ve got a contact name, make sure we’ve got a way to get a hold of the long lost relative in Scotland. But even in a more simple estate, just a list of nieces and nephews if that’s where the money’s going or something like that with contact names or addresses. Anything that can sort of allow you to move quickly, because once you get that, you want to… outreach is the big part of it and communication...Suzana and I have talked about that many times…is a fundamental aspect of any estate administration. Well, early and often, tell them early and often and so the sooner you can get that information out to the beneficiaries, even to say look, we’re on it, here’s the Will, we’re on it, even vague at that point because you’re not really even sure what you’re doing or not doing yet, what your priorities are, is so helpful to creating a feeling of comfort that the beneficiaries know well at least it’s well in hand. And often the beneficiaries respect the choice of the executor. The deceased is gone. The beneficiaries will say well, you know what, they trusted so and so to be the executor. I’ve got a bit of trust there. And when you communicate, you encourage the trust and that’s a…we find a really helpful thing.

The other part of this, and again, these early days of being an executor in terms of your duties can be a bit hectic, but obviously it’s determine the nature and extent of the assets and liabilities of the estate. You know, find out where everything is, get the bank accounts, the financial investment accounts and insurance proceeds or things like that rolling and getting that pulled in. As an aside, it’s an interesting sort of debate you find sometimes with financial advisors, and certainly in Canada, that the law is quite clear and expressly clear that as long as you’ve got a Will, a notarial copy of it, you should be able to put that to…I tell my clients you should be able to put that to the financial advisor and tell them to sell the assets. Put it into cash, that’s one school of thought. Another school of thought is to wait till you get probate to distribute the assets. Now the idea that you can insist on the sale of the assets brings with it some controversy but it’s an option that you may want to consider. You may not want to play the markets anymore and you want to go into a cash position and distribute. For example, if there’s charitable bequests and so on, you want to get whatever’s there on the date of death or as close to it in a cash position and distribute it. Others choose to play the market. Some people play the market within the context of the trusts that are created under the Will. For example, if there’s a trust for the surviving spouse. The point is, is that you have a lot of flexibility and you can consider that flexibility in the context of your certain circumstances and the flexibility ranges right from, look I want to go cash or right to here. And in Ontario we have a provision under the Trustee Act which we call the prudent investor rules which say if you’re gonna hang on to assets, this is how you do it and here are the rules. And Section 27 of the Act really, truly codifies those rules and gives people some guideposts as to how they should deal with the investments.

So I think we’re around 6 or 7 duties and we’ve got more and we’re gonna enjoy having discussions on each of those as we work through it, but we’ll post the first…next few that we’ve just talked about today on our web. And we appreciate you joining us as always. I’m almost certain we’ll get Suzana back shortly and thanks for taking the time to watch our podcast.

You have been listening to Hull on Estate and Succession Planning by Ian

Hull and Suzana Popovic-Montag. The podcast that you have been listening

to has been provided as an information service. It is a summary of current

issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

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

 Listen: Why

This week on Hull on Estates and Succession Planning, Ian continues his discussion on the book Start with Why By Simon Sinek.  This book can be found in the Hull & Hull LLP Reading Center.  Ian discusses why one becomes an executor and what it means to be an executor. This is followed-up with his first three duties for an Estate Trustee.

1. Make proper funeral and burial arrangements.
2. Determine that the Will appointing the Executors is the last will and testament.
3. Make provisions for the immediate needs of any dependants.

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.

Listen: Year of 2011

This week on Hull on Estate and Succession Planning, Ian discusses the year of 2011. Specifically, he discusses the book Start with WHY by Simon Sinek, which can also be found in the Hull & Hull LLP Reading Center. Ian examines the question of why in regards to estate planning issues and contentious planning matters.

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.

Year of 2011 – Hull on Estate and Succession Planning #219

Posted on January 18, 2011 by Hull & Hull LLP

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

Ian Hull: Hi and welcome to Hull on Estates and Succession Planning. This is episode #219.

Hello and welcome back to Hull on Estates and Succession Planning. Suzana and I have taken a slight pod break but we’re back on air, 2011 with lots of vim and vigor and all kinds of topics that we want to cover over the next year. We hope everybody had a nice holiday season and although we’re well into January now that this podcasting is being launched, we want to welcome everyone back from our little pod break…podcast break. Over the holidays…oh and sorry you’ll notice that Suzana isn’t with me today…on either side and we’re podcasting without her and she will hopefully be back for our next one, if not the one after. She’s engaged in a big mediation right now. 

I’m gonna start off with this year with a podcast about the year of 2011 and something that I’m trying to do more with my clients, and I’m hoping that people are trying to consider generally when we’re dealing with estates and trusts and potentially or actual contentious matters with estates. And I…over the holidays I had some time to read some books and one of the books I read was a booked called “Start with WHY” and it is a book by Simon Sinek and it’s on our preferred reading list on the web page that we have updated regularly. And the link to the book is there. But it talks about starting with ‘why’. And I thought what might be a good idea for our…and I’m gonna start pushing on my clients to do…is let’s start with ‘why’ when they come to see me about dealing with (a) estate planning issues or (b) dealing with contentious estate planning matters.

I often face the different types of litigation that we see in our office with a great deal of hesitation. I know the turmoil and the pain that the litigation will be for the client and it’s like telling a teenager about the risks going forward. They don’t understand them until they’ve lived through them. So there’s a certain amount of, I find with my clients, a little bit of…my warnings go on deaf ears. And that’s okay, of course, and it’s appropriate because that’s a personal choice that the client wants to make. But it seems to me that we need to press back and consider ‘why’. Why exactly are we pursuing the litigation? And consider today the question of ‘why’ in the context of the types of contentious matters that arise, certainly in every day-to-day practice.

The two key components to any matter at our office that we deal with is (1) communication and (2) transparency. Communication about what we’re thinking, about how we’re seeing the dynamics unfolding as the litigation or as the contentious proceedings move on. We are always working at better communicating those thoughts and those concepts to our clients to keep them up-to-date (a) but (b) to let them know where we think the matter is proceeding, both from a strategic and from a legal standpoint. 

And secondly, the transparency – the transparency between both the client and the individuals, individual lawyers and of course, the transparency within the litigation. We need to hold our…obviously we hold our cards close to our chest and are there for the number one goal of protecting our client’s interests, but sometimes the transparency can be so important. And where transparency can be so important is, of course, and one of our general themes throughout our podcasts is, when planning. Forget the contentious side because that can be tied to strategic advantages to proceeding and certain information being disclosed at certain times. But on the planning side, the strategy tends to be more wide open. And again, I will ask myself and ask my clients to consider ‘why’. Why do I want to communicate my future thoughts in terms of my estate plan? And why do I want to be transparent? Well we’ve talked many times in our podcasts about the benefits of the ‘why’, the benefits of transparency and communication. But I wanted to think…I was thinking about it when I was reading this book. And what is the ‘why’? When we wake up in the morning and we consider pursuing our estate plan, or we consider pursuing a litigation plan within the context of our estate, why are we doing it? And I like to ask myself, and I’m gonna use 2011 as a reminder to me to ask my clients too, when they come to see us about a contentious matter. For example, we have a series of podcasts that deal with how a Will challenge proceeding is conducted. And we have my father’s video on-line where he explains in his views some of the real core components of a Will challenge and a piece of Will challenge litigation. That’s the’ what’ and we have dedicated our website and we’re continuing to dedicate our website to the ‘what’. But ‘why’ is only answered by the client. And certainly from my perspective, I’m gonna start to be more vigilant to ask the clients why. And why do they want to engage in the litigation? Is it a variety of factors? Is there more factors? Is it more overwhelming than the other? And the Will challenge litigation is an easy illustration of that, because the ‘why’ to pursue that litigation is a choice. And it’s a choice. Whereas when we have dependant’s relief applications or situations where our clients or we’re defending them or in the context of a dependant’s relief application, it can be the ‘what’ in the sense that they need the money. The spouse has not been properly treated, not given enough money during his lifetime, the Will does not provide for it. So you bring a dependant’s relief application. That’s because the ‘what’ is, I need money for my client.

Whereas when we get back to the ‘why’ in the context of estate litigation and Will challenges, sometimes it’s about the money. But sometimes it’s about far more than the money. And what we’re finding more and more when we’re pressing on that issue of the ‘why’…we’re absolutely capable to do with the ‘what’…the ‘why’ helps us deal with the ‘what’. Once we get a better understanding of why our clients are proceeding in the way that they want to proceed in the context of the litigation that they want to proceed, that can have a tremendous impact refining and directing our litigation in a very surgical and a very pointed way. And it seems to me that’s where the efficiencies can start to come into play in the context of the ‘what’.

So I’ve used ‘why’ and ‘what’ back and forth and in the context of two different choices – a dependant’s relief application where the ‘what’ is, we need the money; and a Will challenge where the ‘why’ is not necessarily driven by the money. And it’s driven by different factors, why they are pursuing that litigation.

So I look at the other kinds of litigation that we’re involved with and I think to myself, from our perspective anyway, when we’re looking to remove a trustee, the question of ‘why’ needs to be answered at the outset or at least needs to be framed at the outset so that then we can proceed with the ‘what’. If we’re not happy, my client is not happy with the actions of the existing trustee, why are we trying to get them removed? Well is it partially because they’re putting the estate assets in jeopardy? Or is it partially because we just don’t like them? And once we can drill down on the ‘why’, we can then create our plan going forward and our ‘what’ going forward.

So again I thank the author, Simon Sinek, for alerting me of the ‘why’ and the ‘what’ distinction. I hope I haven’t been too confusing with the ‘why’ and the ‘what’ today but I thought that it was a great way to illustrate our starting point into what is going to be an exciting year of podcasting with myself and Suzana. And we look forward to being back on air more regularly after we’ve taken our Christmas extended break from podcasting. So welcome back to everyone and I look forward to our next podcast.

Thank you very much.

You have been listening to Hull on Estate and Succession Planning by Ian

Hull and Suzana Popovic-Montag. The podcast that you have been listening

to has been provided as an information service. It is a summary of current

issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

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

Listen to: Mutual Wills

This week on Hull on Estates, Paul Trudelle and Rick Bickhram discuss a recent case out of the B.C. Supreme Court that applies the mutual Wills doctrine and discusses what Will be needed in order to find a mutual Wills agreement.

For more information on Brewster v. Lenzi, 2010 BCSC 1488 (CanLII), please click here.

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Paul E. Trudelle – Click here for more information on Paul Trudelle.

Rick Bickhram – Click here for more information on Rick Bickhram.

Mutual Wills - Hull on Estates- Episode #232

Posted on December 14, 2010 by Hull & Hull LLP

Rick Bickhram: Hello and welcome to Hull on Estates. You are listening to episode 232 on Tuesday, December 14, 2010.

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.

Paul Trudelle: Hi and welcome to another episode of Hull on Estates. I’m Paul Trudelle.

Rick Bickhram: And I’m Rick Bickhram.

Paul Trudelle: Hi Rick. How are you today?

Rick Bickhram: I’m doing well. How are you?

Paul Trudelle: Good, good. The year is quickly winding down.

Rick Bickhram: It is and this is one of the very few podcasts left for the year.

Paul Trudelle: Yes, I think it’s my last one for 2010 so I wanted to thank you for participating in our podcasts this year and thank our audience for listening this year and I hope everyone has a great holiday.

Rick Bickhram: Yes. I would like to wish everybody happy holidays out there and I hope everyone enjoys it.

Paul Trudelle: And happy New Year. We thought we’d end the year by discussing a recent case out of the BC Supreme Court that talks about mutual Wills and applies the mutual Wills doctrine and discusses what will be needed in order to find a mutual Will agreement.

Rick Bickhram: Absolutely. And I think it’s the facts in this case that makes this case particularly unique. And it was Paul that pointed it out to me. And again, I guess I’ll just jump into the facts right away.

Paul Trudelle: Sure.

Rick Bickhram: And Paul will jump in and put in your two cents whenever you feel fit. So in this situation we have Peter and Lena. And this is their…both their second marriage. They’re both pretty elderly. I think the wife…Peter was 64 years of age and Lena was 69 years of age.

Paul Trudelle: That’s not actually very old, Rick. You’re showing your youth. They were…yes, they were middle-aged, let’s say, at worst.

Rick Bickhram: Okay, we’ll leave it at that. And they had their assets during their lifetime that they had accrued but when they originally got married, they moved into Peter’s residence and then they decided that they were gonna each contribute one-half of the purchase price of a condominium.

Paul Trudelle:   Right. And I think it’s important to note that they both contributed to that condo but for the most part they kept their finances separate other than that one joint purchase.

Rick Bickhram: Absolutely. And that’s a very important fact here. After they each contributed one-half to the purchase of the condominium, they moved into it where they lived for I would say about 6 to 7 years until the husband, Peter dies.

Paul Trudelle: Yeah, he died in 1997.

Rick Bickhram: During their marriage, they had…both Peter and Lena agreed to execute Wills, mutual Wills. And those of us that are not really familiar with mutual Wills, I’m gonna ask Paul to jump in here and maybe he can explain a little bit more, better than I can.

Paul Trudelle: Yeah, the mutual Will, I guess, is a finding that the Court makes. It will apply in the circumstances where in this case Peter and Lena both made Wills. They agreed that they would transfer one-half of the contents and their one-half interest in the matrimonial home to the other, to the survivor. And then upon the survivor’s death, it’s going to go to specified parties. And in Peter’s case, if he died first, the property would go to Lena and then when Lena died, it was going to go to Peter’s daughter by a first marriage, the plaintiff. If Lena was to die first, Peter would get Lena’s interest and then when he died, Lena’s half would go to Lena’s nephew and niece. That’s the mirror Will type provisions that we often see. It would be a mutual Will if those provisions were put in place and there was an agreement found that upon the death of the first that those terms became irrevocable. And that was the issue here because as it turns out, after Peter died, Lena made a new Will that left…that didn’t leave half of the property to Peter’s daughter but in fact gave the entire property to Lena’s niece and nephew.

Rick Bickhram: Absolutely. Well that’s exactly what happened here was they had the mutual Wills. Peter dies. Lena doesn’t die as yet but she executed a subsequent Will and in that subsequent Will it names…she leaves the residue of her estate to the two designated beneficiaries that would have taken which is I believe one was her niece and then the other one was…

Paul Trudelle: A nephew.

Rick Bickhram: A nephew.

Paul Trudelle: Yeah. And the Court says that “When the fact of the new Will and Mrs. Lindsay’s (Lena’s) apparent intention to disregard the alleged agreement came to the attention of the plaintiff, she commenced this action”. What’s not clear is how the daughter found out about the new Will that Lena had entered into. But in any event she found out about it and cried foul, stating that that would be a breach of the mutual Will agreement. So the issue was whether there was a mutual Will agreement and whether Lena was bound by it. The Court looked at the terms of the Will itself and there were mirror terms saying that Peter’s share would go to Lena and then it was to go to half to his daughter. The Court correctly quoted the facts…sorry, the law in the area saying that those terms alone aren’t enough for…to found a finding of mutual Wills. What you’d need is something more than that, that shows an agreement that the recipient agrees to be bound by the terms of the mutual Will. And so the Court then turned to whether there was that…whether there was enough evidence to show that Lena agreed at the time of the making of the Will to be bound by those terms.

Rick Bickhram: And I think that’s the interesting and the very neat little tweak in this whole…in this case is that the Court comes out and says, you know what, even though you guys have mirroring provisions in the Will, we want more proof. We want some sort of corroborating evidence to indicate that there was an agreement before I decide to hold both Lena mutually…or impose some sort of obligation on Lena to be held responsible, to hold that half of property in trust for the beneficiaries of Peter’s estate. And in this case, the plaintiff heir which is his daughter, Lorraine.

Paul Trudelle: Right. And the Court went on to consider the evidence and whether there was such an agreement. And I think there’s two important points there: one is the actions of Lena after Peter’s death served to confirm the agreement; and secondly was independent evidence from a friend of the family that served to confirm that agreement of mutual Wills. Let’s first turn to what Lena did after the deceased passed away. I think at that time she did go to see a lawyer. The lawyer was addressing concerns raised by the daughter and the lawyer spoke to Lena allegedly and wrote back saying that Lena intends to be bound by the agreement.

Rick Bickhram: Yeah, I thought that the daughter wanted to go on title to the condo because the condo was originally held in joint tenancy. So when you have an asset held in joint tenancy, there’s a possibility that it may go by right of survivorship, and I use that word very lightly…or very loosely because we all know that there’s this constructive trust argument. So that’s what the daughter raised in the situation. She said that Lena, you are holding this property in trust for me on the basis of that mutual Wills’ argument. 

Paul Trudelle: Yes and I think that’s the way to get around the joint tenancy issue. I think it would have been open to the Court to consider whether this was jointly held property and whether it passed to Lena outside of the estate and therefore the Wills didn’t quite govern. The Court did discuss briefly, though, whether the joint tenancy was severed by the terms of the mutual Will agreement. Also alluded to the trust claim that the daughter would have against this jointly held property. The Court did consider the fact that Lena did…confirm or agree that she would be bound by the agreement. It appears that there was an issue at trial as to whether that agreement was actually authorized by Lena and for that reason, I think we heard evidence from Lena’s lawyer at the time who said yes, he met with Lena and they discussed it and this was her agreement. It looks like Lena tried to distance herself from that evidence but the Court did accept the evidence of the lawyer.

Rick Bickhram: Absolutely. And that’s pretty strong evidence. You have a family friend who comes in to corroborate hey, there is a mutual Will here and by course of conduct, that mutual Will kind of severs the joint tenancy. And then we have subsequent testimony from the lawyer, and it’s Lena’s lawyer, and his evidence is again Lena was aware of the agreement, she acknowledged it and I don’t…that’s pretty tough evidence to get around so…

Paul Trudelle: Yeah, and I think that strongly supports the judge’s conclusion that there was a common intention at the time the Will was entered into that the property…half of the property would go to the survivor and upon the survivor’s death, it would go as the parties agreed when they entered into the Will – half to Lena’s side and half to Peter’s side. So in order to…the remedy that the Court imposed was a finding that Lena held half of the condo in trust for Peter’s daughter from his first marriage. There was an agreement, it appears, that Lena would be able to live in the property during her lifetime and it would only pass upon her death.

Rick Bickhram: So basically she gets a life interest and then subsequent to her passing, the proceeds I guess would be divided or…I don’t know how.

Paul Trudelle: It would be sold and half would go to Peter’s…

Rick Bickhram: Peter’s estate.

Paul Trudelle: Yeah, Peter’s side and half would go to Lena’s side. Well, it’s an interesting decision. And we’ll put the link up to that decision on our website in our show notes. We thank you for listening. If you have any questions, please feel free to write to us at estatelaw.hullandhull.com. That’s our website. You can write to us at hull.lawyers@gmail.com or visit our website where you’ll find notes on this podcast and other podcasts and blogs as well.  

Rick Bickhram: We hope that you enjoyed the show. I’m Rick Bickhram.

Paul Trudelle: I’m Paul Trudelle. Thank you.

Rick Bickhram: Until next week, so long.

Paul Trudelle: Bye.

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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