This week on Hull on Estates, Paul Trudelle and Saman Jaffery discuss Charitable Giving and Estate Planning.

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

Click here for more information on Paul Trudelle

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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.

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This week on Hull on Estates, Paul Trudelle and Nadia Harasymowycz discuss equalization payments and the effects of bankruptcy on equalization payments with particular reference to the the case Schreyer v. Schreyer 2011 SCC 35 (CanLII). 

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

Click here for more information on Paul Trudelle.

Click here for more information on Nadia Harasymowycz. 

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss the recent Canadian Donor’s Guide. This publication is an annual directory of fundraising organizations in Canada.

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

Click here for more information on David Smith. 

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This week on Hull on Estates, Paul Trudelle and Rick Bickhram discuss obtaining a return of certificate of appointment with reference to the Estate of Donna-Rae Prong, Deceased.  2011 ONSC 632 (CanLII). 

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

Click here for more information on Paul Trudelle.  

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This week on Hull on Estates, Craig Vander Zee and Natalia Angelini reflect upon the recent Ontario Bar Association Trusts & Estates Year End Dinner, which was held May 31, 2011 in the Distillery District here in Toronto.

If you have any questions or 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.

Natalia R. Angelini - Click here for more information on Natalia Angelini.

This week on Hull on Estates, Natalia Angelini and Rick Bickhram refer to the case Quinlan v. Caron. Specifically, they discuss how this case relates to a summary judgment motion in respect of a will challenge.

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

Natalia Angelini - Click here for more information on Natalia Angelini. 

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

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.

This week on Hull on Estates, Craig Vander Zee and Sharon Davis discuss the Law Society of Upper Canada's recent program The Six-Minute Estates Lawyer 2011, which was held on April 27, 2011.  This annual program featured a series of speakers including Hull & Hull LLP own Suzana Popovic-Montag, Craig Vander Zee and Jordan Atin.

If you have any questions or comments send us an e-mail 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. 

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

Posted on May 3, 2011 by Hull & Hull LLP

Sharon Davis:  Hello.  Welcome to Hull on Estates.  You’re listening to episode #247 on Tuesday, May 2.

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.

Craig Vander Zee:  Hi and welcome to another episode on Hull on Estates.  I’m Craig Vander Zee.

Sharon Davis:  And I’m Sharon Davis.

Craig Vander Zee:  If you want to be heard on Hull on Estates, you can participate by leaving us a comment.  Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Sharon Davis:  Hi Craig, how you doing today?

Craig Vander Zee:  Very good, Sharon, yourself?

Sharon Davis:  Very well, thanks.  I heard that you went to a great program last week, April 27^th.  It was the Six Minute Estates Lawyer.

Craig Vander Zee:  Yeah, I thought it would be a good idea just to mention that.  The program was 3 hours in length.  It was the morning on April 27^th and it covered a full range of topics. And because the…although it’s called Six Minute Estates Lawyer, the actual presentations were 8 minutes in length. But because they’re only 8 minutes in length, there were certainly quite a number.  In fact, I think there were 19 separate presentations.

Sharon Davis:  Very good.  And I’m looking at the topics. They really look like great topics here.  I’m just gonna go through some of them so that if you’re looking for materials on these particular topics, certainly the Six Minute Estates Lawyer is a great place to go to look them up.  Update on Family Law Act amendments by Barry Corbin.  We had Predatory Marriages by Kimberly Whaley. A Charities Update by Elena Hoffstein.  Trust Residence Post-Garron by Sheila Crummey.  Inter Vivos Trust Audits by Angela Ross.  Pet Trusts by Thomas Grosinger.  Common Issues on Applications for Certificates of Appointment by Julie Lesaki (I’m probably not pronouncing that correctly but I’m getting as close as I can).  Administration of Multiple Wills, Claire Sullivan.  US Estate Tax Update by Kevin Gluck.  Estates and Trusts Hotspots by Deborah Petch. CPD Requirements by Diana Miles. I know that’s a big one coming up.  We certainly all have to make sure we’re getting those credits in.  Cy Pres Section 13 Orders and When to Serve the OPGT.  I’ve got quite a few here actually that are listed.

Craig Vander Zee:  Yeah.

Sharon Davis:  ‘Cause 6 minutes and 8 minutes really do add up, don’t they?

Craig Vander Zee:  And that last presentation was by Dana Disante.

Sharon Davis:  That’s right. The Cy Pres Section 13 Orders.  Life Insurance and RRSP Beneficiary Designations for Minor Children, and that was by Sue Stamm of the Office of the Children’s Lawyer.  Habeus Corpus and the Substitute Decisions Act by Karon Bales.  Evolution of Orders appointing Estate Trustee during Litigation – What should be covered, by our Hull & Hull’s own Suzana Popovic-Montag. Increasing the Odds of a Successful Mediation by Claire Burns. Estates and Privilege by Justin de Vries. Costs and the Impact of Proportionality Considerations by Jordan Atin, also of our office. And Conflicts involving the Role of Estate Trustee and Estate Solicitor, last but not least, Craig Vander Zee.

Craig Vander Zee:  Yes. And again, I thought the presentations and the materials were extremely informative and certainly intriguing as well.  So again I recommend them to people who might be interested in those topics or even just a certain portion of those topics.  I thought I might take a moment just to touch upon my topic, Conflicts involving the Role of Estate Trustee and Estate Solicitor.  The lawyer who acts as both the solicitor for the Estate and the estate trustee takes on a dual role.  And it’s important to realize that with that dual role, that each of the responsibilities and duties that arise in each of those roles are different and that the manners of being compensated are different, and that conflicts can arise.  And also, it’s important to recognize that the risk of personal liability and the potential protections afforded to each of those roles are indeed different as well.  So it’s important to take that onboard when you’re taking onboard both the roles.  And when looking at the duties of a solicitor as estate trustee, I think the starting point would be, well what are the duties of an estate trustee?  Whether one’s a solicitor or not.

Sharon Davis:  I’ll bet that it’s very important to make sure that you have a clear idea of which duties fall into which category for sure.

Craig Vander Zee:  Well that’s right and, you know, the estate trustee has obligations to the beneficiaries, we know that.  But estate trustees can also have obligations to third parties by way of statute or another reason. And so the estate trustee has to be mindful of that.  And some obligations that stem from that loyalty is a duty to avoid situations which place the estate trustee in a position of conflict or deriving a profit from the position, a duty to act impartially amongst the beneficiaries, a duty to inform and account, and a duty to act personally in the performance of the duties imposed. And I don’t intend today to get into the details of those other than to say that those are duties which have been seen to be attributed to an estate trustee.  And obviously one needs to look to the Will itself or to statutes such as the Trustee Act as to whether those duties or obligations are expanded upon or limited by one of those.  And the duties…these duties apply equally to the solicitor who acts as the estate trustee, as they would to the estate trustee who is not a solicitor for the Estate. 

But what’s interesting is Madam Justice Greer noted in a paper that she presented last year entitled “View from the Bench – Standard of Care applied to lawyer as attorney for trustee” and that was in an Ontario Bar Association program presented in May of  2010. She indicated that there was no codification or partial legislative governance for lawyers who act in both of those roles. So lawyers need to be mindful of the duties that can apply to them and solicitors also have to be mindful that in addition to that, they have to meet their professional obligations in accordance with the Rules of Conduct and those rules from the Law Society of Upper Canada. And where the rub seems to be most often in the dual role is with respect to the issue of compensation.  And how is the estate trustee compensated and how is the Estate solicitor compensated?  And the estate trustee finds his or her compensation based on the terms of the Will or the Trustee Act, that is the sections of the Trustee Act, or the case law that has developed. The Estate solicitor initially looks to Section 61.4 of the Trustee Act and then the manner of being compensated. And as often is the case, the estate trustee is remunerated based on a percentage being applied to the capital and revenue. But an estate trustee’s compensation is intended to cover all of the services that have been provided by the estate trustee to the Estate. Whereas an Estate solicitor is being remunerated for the specific services being provided for. And typically that is on an hourly rate and on a quantum meruit basis.

So the problem arises if that individual, the lawyer, is getting paid twice for the same service.

Sharon Davis:  Absolutely.  I would think, too, that the standard expected of lawyers in general…you’re always a lawyer. And the Court will always recognize that you’re a lawyer. And so it’s very important to be extra vigilant and to comply with all of the duties to the letter, because you’re not gonna get a lot of slack when you’re a lawyer not obeying, you know, the rules for sure.

Craig Vander Zee:  Well certainly litigators in the Court are going to look for the differentiation of the services. And so if there was a service that was provided as an estate trustee and the solicitor is charging an hourly rate for it, well then the case law would indicate that that is gonna be deducted from the estate trustee’s compensation if it has been paid to the lawyer in his capacity as Estate solicitor.  So it’s important to maintain separate dockets in that capacity rather as Estate solicitor, and for those services provided as the estate trustee.  And in the event that those services are not differentiated and there are separate charges, then the case law is extremely indicative of there being a reduction in the compensation. And again, the lawyer whose playing in that dual role is gonna have the onus upon him or her to prove the compensation that they’re asking for. 

And so in my paper I covered off more and I dealt with a number of cases that deal with this potential issue. But I thought that it might be useful to just mention that in today’s podcast.  Something else that I thought we would just mention is that there is an OBA, that is, Ontario Bar Association program…indeed there are two programs being run on May 10, 2011.  One is the morning program being chaired by Suzana Roth for the period 9:00 a.m. to noon. And it’s entitled “Will and Estate Planning Essentials”.  And it’s my understanding that the program covers three of the CPD hours that are required by the Law Society.

Sharon Davis:  And then the second one, in the afternoon from 1:00 o’clock till 5:00 picks up from there and it’s “Beyond Will and Estate Planning Essentials”. And so this provides more of an in-depth review of Will and Estate planning topics including emerging practice issues.  So both a great day to attend for sure for Estates practitioners.

Craig Vander Zee:  Yeah, no, the topics being covered in those are certainly equally interesting.

Sharon Davis:  They are.  Joanna Ring-Rose and Edward Okavich will be chairing that piece of the CPD that day.

Craig Vander Zee:  And so that would also be, I think, an excellent day to attend one or both of the programs if you’re interested in the topics being covered on that. And I think people can contact the Ontario Bar Association to find out more about those programs if they’re interested in attending.

Sharon Davis:  That’s right.

Craig Vander Zee:  And I think with that, Sharon, we’re done for today.

Sharon Davis:  I think that’s about it.  Oh, one more thing I think we should probably mention is our end-of-year dinner.  That’s on May 31^st.  So if you don’t want to learn anything but you’d like to come out and have a lot of fun, you can certainly do that as well. And details for that would also be on the website for the OBA.

Craig Vander Zee:  Yes.  And I think, thank you for remembering to mention that.  At the year-end dinner, the OBA Award of Excellence for our section, that is the Trusts and Estates section, will be presented.  And this year’s winner is Mary MacGregor who’s a very deserving recipient of the award. So that will be presented.  And then also the Hoffstein Book Award will be presented as the Wittifield Award will be presented as well.  And as the current Chair of the OBA Trusts and Estates section, I’ll be closing out the year and the new slate for the section executive for 2011/2012 will be announced.  So that is…that’s a fun evening as well and certainly one where a chance to meet colleagues in the Bar again. And that’s gonna take place again at the Distillery District this year at the RKO again.  So…

Sharon Davis:  That was great last year so it’ll be a lot of fun again.

Craig Vander Zee:  Yeah.

Sharon Davis:  And it’s always a great excuse to get out there and celebrate our own because that’s what it’s all about. When there’s excellence out there, you want to make sure you acknowledge it for sure.

Craig Vander Zee:  And then I guess I can say again, I think that’s it for today’s podcast.

Sharon Davis:  This time I think you’re right though. So that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Craig.

Craig Vander Zee:  It was certainly my pleasure, Sharon, and I look forward to podcasting with you again soon.

Sharon Davis:  And we look forward to hearing from our listeners as well.  You can send us an email at hull.lawyers@gmail.com and be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of Estates law.  We hope that you enjoyed our show.  I’m Sharon Davis.

Craig Vander Zee:  And I’m Craig.  Until next week, so long.

Sharon Davis:  Thanks.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

This week on Hull on Estates, Paul Trudelle and Nadia Harasymowycz discuss how an individual can seek an accounting. Specifically, they refer to the case Ekelshot-Kumelj, et al v. Bradley.

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

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

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Obtaining an Accounting - Hull on Estates- Episode #246

Posted on April 19, 2011 by Hull & Hull LLP

Nadia Harasymowycz: Hello and welcome to Hull on Estates. You’re listening to episode 246 on Tuesday, April 19, 2011.

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.

Nadia Harasymowycz: Hi and welcome to another episode of Hull on Estates. I’m Nadia Harasymowycz.

Paul Trudelle: And I’m Paul Trudelle.

Nadia Harasymowycz: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle: How are you today, Nadia?

Nadia Harasymowycz: I’m well, Paul. How are you?

Paul Trudelle: I’m good. Still waiting for spring with the snow flying, we’re not getting it yet but hopefully it’s around the corner.

Nadia Harasymowycz: I’m in the same boat. I keep hoping to pull that spring jacket out of the closet.

Paul Trudelle: We’re gonna podcast today on a case that we came across that deals with the issue of obtaining an accounting where a grantor of a Power of Attorney to an attorney is in issue and there’s an allegation that the attorney acted improperly under that Power of Attorney. And it addresses what rights parties have, beneficiaries to the estate where that person passes away, to get an accounting from the attorney after death.

Nadia Harasymowycz: I think it may be best to start with a quick synopsis of this case and then maybe we’ll go into some of the law that governs the area of law and then further why the judge came up with the decision he did. So let me just start with that. The case we’re speaking about is Ekelshot-Kumelj et al and Bradley, citation is 2011 ONSC 83 and we’re gonna put a link on here for you so if you need any help, you can just go to our website. The basic premise of the case is that the now deceased had four daughters who…three of which brought this application. They’re actually two battles before the Court but the application is the one being dealt with on in this instance. And the application was to compel a passing of accounts by the other sister, the respondent in this matter, who held a Power of Attorney for the mother while she was alive. While the mother was alive, she had sold her home and moved in with the respondent daughter. And in the process of moving in with the respondent, the home needed to be renovated to accommodate certain things including an elevator and certainly just living accommodation for the mom. And that depleted significantly her estate assets.

Paul Trudelle: Right. There were substantial renovations to the respondent’s house having a value…I think the cost of the renovations was said to be $260,000 in order to make the house livable by the mother. I think the respondent acknowledged that the estate had an interest in her home as a result of its increase in value as a result of the renovations. However the other siblings were questioning the expenditures made on behalf of the mother, such as those renovations and other expenditures.

Nadia Harasymowycz: And at no time were…there was no evidence before the Court, it seems, on this particular application, that indicated that the mother didn’t have capacity at this time to deal financially. But, I mean, there’s some capacity issues with respect to her physical health but none that would have impacted her ability to make a decision to use her money for this purpose.

Paul Trudelle: Right. And I think that’s key and we’ll come back to that later.

Nadia Harasymowycz: For sure. And as part of this application, the three daughters of the deceased sought particularly a passing of accounts, both as estate trustee and as attorney because the respondent daughter was…or acted in both capacities. The general finding of this matter is that the judge ordered a passing of accounts as estate trustee but did not order a passing of accounts for the respondent daughter in her capacity as an attorney. And it seems to be on the basis that the applicant daughters were not entitled to that under the law.

Paul Trudelle: Right. And I think that again the key is the mother’s capacity while the attorney was…while these transactions were being undertaken. Maybe we can just look at the law briefly. The Substitute Decisions Act talks about keeping accounts. Section 32 states that one of the duties of a guardian or a person…an attorney where a person is incapable is to keep accounts in accordance with the regulations. The issue of passing of accounts is dealt with under Section 42. It says that the grantor of a Power of Attorney has…can seek an accounting as of right. Others are entitled to ask for an accounting but they require leave of the Court. And those others may be beneficiaries under an estate. So they may be entitled to get a passing, however they have to satisfy a Court that they’re entitled to that passing. And the Court considered whether in this case, the applicants were entitled to compel a passing of the trustee’s accounts. The Court looked at the capacity of the mother and found that there was no evidence that she was incapable. In fact, there was some evidence put before the Court from financial planners, doctors, the person who did the renovations, to the effect that the mother appeared to have capacity and was instrumental in making the decisions with respect to the handling of the finances and the undertaking of the renovations.

Nadia Harasymowycz: I think it should be noted in this particular case as well that the applicants chose not to cross-examine the respondent on her Affidavit so the evidence before the Court was Affidavit evidence. And if you’re in this type of situation, you should be considering what kind of evidence you should be bringing in, who you should be examining because it may become relevant in terms of the evidence that the judge is looking at.

Paul Trudelle: Right. I don’t know if they chose not to but I think it’s clear that there wasn’t examinations, whether it was by choice or otherwise. They didn’t have that evidence and because the Court didn’t have any evidence to find that the now deceased was incapable at the time, the Court didn’t feel that there was an automatic obligation to compel…to ask for and get an accounting.

Nadia Harasymowycz: The…in that request the applicants’ position stated that their argument was based on the fact that their mother was in a dependent, unequal position to the respondent who controlled and influenced the mother. And this came back to the evidence before the Court and the judge found that there was no evidence to indicate that there was a dependent and unequal position which would have been permissible, I guess, under the statute to allow them to seek such an accounting.

Paul Trudelle: Right. If she was clearly dependent, then I think the Court may have ordered the accounting. However there again, as the Court said, there was no evidence to support that. In fact, to the contrary there was some evidence to suggest that the mother, now deceased, was instrumental in making these decisions. The Court looked at another case, the case of Fair and Campbell where again there was a party seeking an accounting from an attorney. The Court distinguished between cases where the attorney is making decisions as opposed to merely executing the decisions. And where the attorney is merely executing the decisions and it’s the donor who is still making those decisions, then it’s…the Court won’t necessarily order an accounting in those circumstances.

Nadia Harasymowycz: As in every matter, I think the decision is very fact-specific and being applied to the law. But it’s interesting to note with this case that near the end of his judgment, the Honourable Justice Edwards comments on how the now estate trustee should inquire as to the value of her home for the purpose of dealing with the accounting because it’s tied into the assets of the mother prior to her death. And I think the commentary is interesting in terms of how you would move forward if you were dealing with an accounting or seeking an accounting, in both capacities of estate trustee or attorney.

Paul Trudelle: Right. And I think it’s important for parties who are either seeking an accounting or resisting giving an accounting as attorney to look at the circumstances of the donor and come up with strong evidence with respect to whether she was incapable or not. And I think it’s an answer for an attorney to say that they weren’t making the decisions, it was the deceased who was making the decisions. And in those cases, based on this case, it may be that an accounting may not be required.

Nadia Harasymowycz: Well I think that brings us to the end of this week’s discussion. I hope that you found our review of this case helpful and we always invite you to come to our website for further information on this and other topics. Thanks for listening and thank you for joining me today, Paul.

Paul Trudelle: Well thank you.

Nadia Harasymowycz: We look forward to hearing from you. You can send us an email at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estates law. We hope that you enjoyed the show. I’m Nadia Harasymowycz.

Paul Trudelle: And I’m Paul Trudelle. Until next week, so long.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Listen to: Estate Planning for New Lawyers

This week on Hull on Estates Natalia Angelini and Sarah Halsted discuss the paper "How to Draft a Will - Minimizing the Risk of Liability to You" by Corina S. Weigl.  More specifically, they discuss tips for estate planning such as; how to take instructions, how to draft a will, how to see that it is duly executed and lastly, the importance of reporting to your client once the will has been executed with a final reporting letter.

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

Natalia R. Angelini - Click here for more information on Natalia Angelini.

Sarah Halsted - Click here for more information on Sarah Halsted.

Estate Planning for New Lawyers - Hull on Estates- Episode #245

Posted on April 12, 2011 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #245 on Tuesday, April 12, 2011.

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.

Sarah Halsted: Hi and welcome to another episode of Hull on Estates. I’m Sarah Halsted.

Natalia Angelini: And I’m Natalia Angelini.

Sarah Halsted: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Natalia Angelini: Thanks Sarah. I’m glad we can be podcasting for the first time together.

Sarah Halsted: Yes, I’m looking forward to it.

Natalia Angelini: So why don’t we get right into it. We’re gonna be talking about the most recent CLE that Sarah, you attended, called The New Lawyer Practice Series, Wills and Estates Law 2011 that was held on March 3.

Sarah Halsted: Yes and it was chaired by our own Jordan Atin. It was very informative.

Natalia Angelini: And I think you were telling me, one of the papers you found to be and talks that you found to be really informative was the one given by Corina Weigl on How to draft a Will and minimizing the risk of liability.

Sarah Halsted: Yes that was a very good, thorough paper.

Natalia Angelini: So why don’t we take some talking points from that paper and let our listeners know what you gleaned from Ms. Weigl’s paper and her talk.

Sarah Halsted: Sure Natalia. So this paper is intended to provide a process to follow from when the client walks in the door asking for a Will to be drafted, what to do with the Will once it’s been executed and how to report to the client. It covers four areas and the first is taking instructions. Note taking is of crucial importance. You must take notes as to the client’s background and use that to sort of come up with the template for the Will that you’re going to draft.

Natalia Angelini: That’s right. I think, you know, it seems kind of trite but we definitely, on our end when we do LawPRO work, we do see some times that if there are great notes, it’s helpful to the…you know, our client. And if there aren’t, it can be detrimental to their case. So I think it’s certainly a trite but important point to stress. I think one of the other things that she mentions is testing the mental state of your client. And there’s sort of a two-pronged approach here. Number one, you want to look at does your client have the capacity to make a Will? And, you know, number two, are the instructions being provided to you those of your client or is he or she under some kind of influence or undue influence of others? So, you know, there’s…I mean, there’s a lot to capacity that could take up much more than this talk today. But in its simplest…or just by way of simple comment I guess what we take from this is that you definitely want to test that the testator understands what they’re doing by making a Will, they understand what their property is and how they’re giving it away and they explain their rationale to you about why they’re doing what they’re doing. You know, they know that they’ve got…if they have obligations to their dependents, they understand that. And you’re really gonna be exploring with your client the kinds of questions. And you can ask questions ranging from a whole gamut of things from their family, their family relationships, their assets, all to help you in determining if capacity is an issue or not.

Sarah Halsted: Okay the next topic is the relationship between your client and his or her relatives.

Natalia Angelini: Right and this is, you know, tying into my other point. You know, there’s gonna be more than just, you know, learning the names of the…for instance, the kids of the testator. You certainly want to be informed about the aspects of the administration  and think about who’s gonna be…or discuss who’s gonna be the best person to be the trustee. And Ms. Weigl recommends that you know what? Talk about who’s gonna be the trustee at the end of your meeting after you’ve got all the information because then you can have a better sense of…help guide your client as to who might be the best person for that.

Sarah Halsted: Another important think that you have to do when you’re taking instructions is canvass assets and liabilities because you don’t want to draft a Will where the gifts are going to abate because there aren’t enough assets. You weren’t aware of the extent of the assets. So it’s important to make sure  you have that background information.

Natalia Angelini: Right, and you know, if people have property outside of Ontario, you might have to think about preparing a separate Will to deal with those assets. You know, and you might also want to confirm ownership of assets by looking at title documents. So what your clients are telling you they own, they actually own.

Sarah Halsted: Another thing that’s important is to discuss tax considerations. So, you know, the client is not necessarily going to know what their obligations are with respect to tax and, you know, mechanisms for reducing the amount of tax payable upon death.

Natalia Angelini: Right. And I think it’s interesting that Ms. Weigl, you know, cautions lawyers, if you will, and says you know if you’re gonna practice in the area of Wills and estates, you need to understand the income tax considerations that are relevant to taxation of property and income on death. And if you don’t, then you may not be meeting, you know, the competency level required by the Rules of Professional Conduct. So if you don’t, you at least need someone I guess on your team or in your office that can help you with this, since it’s definitely something that you’re gonna need to discuss with your clients.

Sarah Halsted: And the next stage of taking instructions is something Natalia’s already sort of touched on is, determining whether there are dependents which your client is under a duty to provide for. This is extremely important because the Will could eventually be subject to a dependent’s support claim if you haven’t provided for that dependent in the Will. So it’s important to know so that…so in estate planning you can prevent that sort of thing from happening.

Natalia Angelini: Right, right. That’s a good point. I’m sorry. I’m just gonna tie back into that…my comment on tax issues. The other related tax discussion I guess you would want to have is about probate tax. And it’s important to discuss it but it’s also something that Ms. Weigl notes, you know, don’t let probate tax savings, you know, become the client’s only focus for doing a certain transaction because sometimes that can actually hurt your client rather than help your client. So understanding your client’s circumstances and what’s gonna work best for them is valuable.

Sarah Halsted: I agree. And some final considerations are whether there are any beneficiary designations for life insurance, RRSP’s, RRIF’s, pensions. You may want to make reference to these in the Will just for clarity. Another thing you want to be aware of is whether there are any previous Wills and you want to consider those in your process of drafting. Make sure nothing important or crucial has been left out.

Natalia Angelini: Right. And I think the key here is also to discuss changes between the Will you’re doing now and the prior Will, especially if it’s a really marked change.  Since we see a lot of, you know, Will challenge litigation coming through our doors, this is kind of a hot spot where lawyers can sometimes get caught if they haven’t explored that change in the testator’s decision.

Sarah Halsted: Now next Ms. Weigl gets into drafting the Will. The most important point in terms of drafting, I think, is to prevent an intestacy with a residue clause.

Natalia Angelini: Right. That’s an important point and again, it seems trite but, you know, it can be overlooked on occasion and the impact of an intestacy is, you know, obviously the last thing a testator wants. I mean, the whole point of having their Will done, in most cases anyway, is to make sure that everything is disposed of as they intend. So it’s certainly an important one not to miss.

Sarah Halsted: Yeah, it’s also important to ensure that all income and capital is disposed of with respect to any testamentary trusts that the client is asking you to draft for them.

Natalia Angelini: Right. And I think another one of the things that we see are where there’s no gift over provision. And Ms. Weigl also, you know, stresses that you want to make sure you include a gift over provision in the event that a beneficiary doesn’t reach, you know, the specified age to receive their gift. And that way, you’ll avoid the application of a Saunders and Voce type rule…the Saunders and Voce rule.

Sarah Halsted: That’s a really good point, Natalia. So the third main aspect is executing the Will. You need to ensure the Will is duly executed in accordance with the Succession Law Reform Act or SLRA for short.

Natalia Angelini: Right. And in that case we’re gonna need two witnesses over the age of 18. You want them staying in the room with you, the solicitor, during the execution at the same time since they’ve got to see each other witness. And while we don’t see a ton of…I guess we don’t see as much litigation revolving around this point, it still does happen sometimes that you’ve got situations where people say oh you know, I didn’t…my lawyer sent me the Will and I signed it or…I mean I think we don’t see very much of it, but we can’t stress enough how important it is to have control over that process and how it’s really negligence avoidance to be in the room while that’s all taking place.

Sarah Halsted: Finally, Ms. Weigl suggests that you prepare a comprehensive reporting letter for your client where you explain what you’ve done, what duties are imposing on like executors for instance, tax considerations, giving an overview of the Will and explaining it to the client so they understand.

Natalia Angelini: Right. It’s definitely helpful, you know, ‘cause sometimes they go through the process and they might not have remembered everything you’ve said or, you know, it’s definitely helpful. And good record-keeping for you as well to have on file that you’ve sent your client a comprehensive letter confirming everything and so later on if anything…you know, if things do go awry, it also might assist with your memory too in jogging your memory to recollect things to have that letter in place. And hopefully it avoids…it helps to avoid misunderstandings as well and if the clients change their mind about something, then you know once they get your letter, then they have that chance to come back to you and revisit things.

Sarah Halsted: I think that’s a really important point, Natalia.

Natalia Angelini: Thanks Sarah. So I think that brings us to the end of our talk. Now, I mean, we’ve touch on this to the degree that we could in our brief podcast. But we really do refer you to Corina’s paper. It’s really comprehensive. It’s almost 40 pages so it’s a great tool to have, especially for the new estate practitioners out there.

Sarah Halsted: Yes, yes. It was very helpful for me as a new lawyer. Well it was a pleasure, Natalia. I look forward to podcasting with you again soon.

Natalia Angelini: Great. And we look forward to hearing from our listeners. As Sarah noted at the outset of our podcast, you can send us an email or visit our blog page. Until next time, take care.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

This week on Hull on Estates Sharon Davis and Natalia Angelini discuss a recent article in Canadian Lawyer Magazine 4 Students "10 Things You Really Need to Know to Practise Law" . Specifically, this article discusses "what more you need to know besides the law?"

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

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

Natalia R. Angelini - Click here for more information on Natalia Angelini.

10 Things You Really Need to Know to Practise Law - Hull on Estates- Episode #244

Posted on March 29, 2011 by Hull & Hull LLP

Sharon Davis: Hello and welcome to Hull on Estates. You’re listening to episode #244 on Tuesday, March 29, 2011.

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.

Natalia Angelini: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Sharon Davis: Hi Natalia, how are you doing today?

Natalia Angelini: I’m well, how are you?

Sharon Davis: Very well. I’m Sharon Davis and I’m here with Natalia Angelini and we’re gonna discuss today an article that appears in Volume 6, Issue 1 of the Spring 2011 edition of the Canadian Lawyer for Students Magazine. Now this is a magazine I think most lawyers are familiar with, the Canadian Lawyer Magazine. And this is a version put out for students. And I found it very interesting and I have to say there’s a good reason I found it interesting, because I was approached by Michael McKiernan of Canadian Lawyer and he was asking a variety of practitioners what sorts of things that they thought students should know when they’re in law school, you know, to practice well when they get out in the real world. Because I think really when you think about it, law school is not exactly like the real world, what would you think?

Natalia Angelini: No, I totally agree. You know, the practice of law is a whole different ballgame and I’m sure if we could all go back and have received greater insight at the time, you know, it certainly wouldn’t have hurt. And would likely have been helpful. So we’re hoping we can discuss the points that Michael addresses in his paper and maybe it’ll be useful to some students or other lawyers out there, since this applies not only to new lawyers and students, but also to, you know, lawyers who have been practicing for some time. There’s some helpful points, in my view.

Sharon Davis: I agree. And I think, too, that even clients understanding sort of where lawyers come from and what the process is for us in learning what we do, can also help clients understand, you know, when they’re dealing with either a student or a young lawyer as opposed to someone who’s really more experienced.

Natalia Angelini: Right.

Sharon Davis: And so when you look at number 1, the article is called “10 Things You Really Need to Know to Practise Law” and the first one is, we’re not in law school anymore, Toto. And I think that’s very true. Law school is set up to give a basic grounding in learning all of the legal rules and applying them to relatively simple fact scenarios.

Natalia Angelini: Yeah. And I think what’s definitely distinctive about practices, you know, I’ve certainly come to learn that it really a lot of the time is about the facts. And of course there’s always, you know, legal principles that we deal with. But the facts certainly do drive litigation. And, you know, judges are people too and they’ve got guttural senses of the facts of a case and where the right decision should lie. So I think that he…you know, Mr. McKiernan makes a good point about, you know, don’t forget about the facts and avoid, you know, too much of a focus on the legal principles.

Sharon Davis: I think too students can be very caught up in the law and, you know, it’s like writing a research paper. But that’s not the way life works, and in fact my experience has been that the facts are not always clear-cut and there are always two sides of a story. There is never 100%, you know, someone who’s 100% right and someone who’s 100% wrong or else you wouldn’t be in litigation.

Natalia Angelini: Right, right.

Sharon Davis: The chances are. Sometimes it happens but not always.

Natalia Angelini: Right. So…and I remember learning that lesson in my earlier years where I was more worried about the law and, you know, if one case decided this I felt bound by it and I learned rather quickly, you know, it wasn’t so. So moving on to his next point which is that you can’t know everything…

Sharon Davis: I think that’s a nice segue.

Natalia Angelini: Yeah. That’s something we can certainly relate to. We’re working in a specialized area and, you know, it’s…if you’ve got a more general practice, I’m sure it’s all the more challenging to know everything you need to know about all the areas you’re working in. So he makes a good point about, you know, not being afraid to confess that you need advice. And you may turn to other lawyers for advice. And the last thing you want to do is try to just go it alone in spite of that.

Sharon Davis: That’s right. And I think, like you say, that’s more of an issue for sole practitioners perhaps. And I know that even in our area, like you say, we’re lucky, we’re very fortunate because we practice one area of law. There’s someone who knows the answer somewhere in our office for absolute sure. And if it’s something novel, it’s all very exciting, because you’ve got a lot of minds working on it for you. But I really enjoy that particular, you know, part of how we practice and the collegiality. But if you don’t have that and if you are someone who feels you don’t have anyone in a firm or nearby, you do have to reach out. And, you know, that kind of leads into number 3, which is help at hand and mentoring. And this is where I really have a strong, you know, commitment to the whole mentoring idea because mentoring is something that is completely critical, I think, to any legal career. And you learn something whether you are a mentor or a mentee, I can guarantee you. What parent does not learn something from a child? I don’t know if there are many of you out there, but I certainly have learned a lot from my children and you don’t expect. But it really is important because mentoring gives you that network. It gives you people to draw on, to ask questions of, to you know give your expertise to and to get their expertise back. And it gives you a great deal of confidence because it is important. There are a lot of scenarios out there. You do need to know as a lawyer that you’re making a very sound decision and one great way of doing that is, you know, to access a mentor.

Natalia Angelini: Right, absolutely. And this next point ties into that to some degree as well. It’s his point about networking. You know, it’s who you know not what you know, but I mean that’s sort of a simplistic way of looking at it. But, you know, the reality is when you make contacts and you present well and you build that network, you’re also building your group of people that you can turn to, to bounce ideas off of and that you can help out.

Sharon Davis: That’s exactly right. And, you know, networking is not something that we give maybe…we give thought to it or lip service to it. It’s not something everybody enjoys but networking takes a lot of different forms. And it doesn’t really have to be picking up a phone and cold calling someone.

Natalia Angelini: Right.

Sharon Davis: I mean, that’s not really networking. It’s accessing the people you know and the people they know. It can be social media.

Natalia Angelini: Right.

Sharon Davis: You know, it can be email, it can be by phone, it can be in person, it can be by letter. And there are all kinds of ways to do it and it is essential to, I mean, not only for your competence and your general, you know, sense of confidence in what you’re doing, but also in your marketing. And, you know, having that network of people on whom you can count. Certainly civility in the law and amongst lawyers has been something that’s been discussed lately and also extremely important. And, you know, the more respect you give other lawyers and the more time you spend building those relationships, the easier it’s going to be when you have someone like that on the other side of a file. You’re gonna be able to problem-solve together and you’ll both be better lawyers.

Natalia Angelini: Right.

Sharon Davis: So it’s just my…okay, I’ll get off the soapbox now. We can move onto the next point.

Natalia Angelini: Yeah, the next point deals with clients. And I think this is a really important one because we are dealing with clients every day and our job is to help them, you know, to the best of our ability. And, you know, he…I guess in canvassing the Bar, what he learned was that, you know, lawyers’, I guess, consensus is that get to know your client’s expectations. You know, learn their story and do your best for them. Also, don’t be afraid to be candid with them and realistic with them about what, you know, the procedure is of the litigation, let’s say, that’s gonna be underway, what the cost is, etc. You certainly want to be as transparent as possible and that’ll avoid any…hopefully avoid conflict down the road and misunderstandings down the road.

Sharon Davis: That’s right. And really in our business today, I mean, the clients do come first. There’s no question about it. Client service is first and foremost on everybody’s mind. And clients, as he says, are people too. You know, they’ve got feelings, you have to listen to them, you have to respond to them and you have to make sure that you respond in a timely manner. Setting the expectations is something that is also critical ‘cause you’ll be judged. You’ll be judged by those and it’ll be minimum expectations.

Natalia Angelini: Right.

Sharon Davis: And then whatever communications you have will be minimum.

Natalia Angelini: Right.

Sharon Davis: The next piece is that you need to get a life. Now this is something that some lawyers do. Many lawyers don’t, I think. You know, you really do have to have some boundaries around personal life and free time. And that doesn’t mean that you can’t be a great lawyer and be responsive and work as much as you need to. 

Natalia Angelini: Right.

Sharon Davis: It just takes a little, you know, creative planning, I think, for sure.

Natalia Angelini: Right. I whole-heartedly agree with that and I think it’s something, though, that honestly a lot of lawyers will admit that we struggle with. But it’s heartening to see that in his research for this article that this is what’s come out of that. That lawyers are saying, yes this is important. You know, I think there might be a change with…there might be a reflection of current day attitudes about work-life balance and how really it is important.

Sharon Davis: That’s right. And really, you know, that ties right into the next point. You know, you do have to be happy. And I think a lawyer who…first of all practicing in an area that you love certainly helps. And really making sure that you do have some balance so that, you know, a happy lawyer is a good lawyer. And I do think that the happier we are, the better we do serve our clients. And there really is a connection. That connection between happiness and superior client service is a proven one and there’s much written on it. And so that really is something that you have to think about. I had made a couple of comments to Michael myself that basically you should like what you do and practicing law should be fun. It is fun. And if it’s not fun, maybe you need to find another area. There’s lots of choices. Give it a fair shot. I mean, I love a lot of things in my practice today that I never thought I would have liked when I first got out of law school, and I love them. And so, you know, give it a fair shake. But if it’s not for you, take your experiences, pack ‘em up and move on.

Natalia Angelini: Yeah. And I think one of the last…well we’ll probably touch on one or two more points. But one of the points that I thought was interesting was about perfectionism not paying. I think that’s something is counter-intuitive to most of us. But, you know, there’s a good point made by various counsel in this article, one of which was, you know, that clients want good, solid work product delivered in a timely manner for a fair price. So if you get bogged down in, you know, a discreet legal issue, you may not be serving your client in the way that they want. You know, one of the quotes in the article is “you could be the best technical lawyer in the world, but if your clients don’t think that, then you’re not going to be successful”. So, I mean, that’s something that I can appreciate but I do think it’s hard to…

Sharon Davis: We all strive for perfect…

Natalia Angelini: Yeah, yeah.

Sharon Davis: It’s our person. I think lawyers are by nature very careful and we do want to make sure that every “i” is dotted and every “t” is crossed.

Natalia Angelini: Right.

Sharon Davis: And certainly we do everything we do to the best of our ability. I guess the thing is, is to really assess when you need to look at what you’re doing for cost-effectiveness.

Natalia Angelini: Right.

Sharon Davis: And how can you achieve your client’s objectives, perhaps, without going overboard on the perfectionism.

Natalia Angelini: Right.

Sharon Davis: I mean, you don’t always need a Cadillac. A Toyota might get you where you’re going, so you have to think about that.

Natalia Angelini: It’s true. And I guess we can just close with one final point which is, look out for number 1. We’re all responsible for our own professional development and, you know, your firm may support you, other lawyers may support you, but the point that really we can glean from this article is that it’s going to be helpful to take ownership over it and take active steps to get there. And if you want to really develop your career, then I think that’s great advice.

Sharon Davis: Well I do think it’s an article worth reading. Certainly I wish I had read an article like that when I was a law student. You know, we all have to learn our own experiences but thank you to Michael for that article. I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Natalia.

Natalia Angelini: Thanks Sharon. Until next time, so long.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

This week on Hull on Estates, Paul Trudelle and Sarah Halsted discuss the Estate of W. J. Halliday, 2011.  Specifically, they examine how it pertains to the Interpretation of Wills.

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

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

Sarah Halsted - Click here for more information on Sarah Halsted.

Interpretation of Wills - Hull on Estates- Episode #243

Posted on March 22, 2011 by Hull & Hull LLP

Sarah Halsted: Hello and welcome to Hull on Estates. You’re listening to episode 243 on Tuesday, March 22^nd, 2011.

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.

Sarah Halsted: And I’m Sarah Halsted. If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle:  How are you today, Sarah?

Sarah Halsted: I’m great. And how are you, Paul?

Paul Trudelle:  I’m great, thanks. And this is your first podcast I understand.

Sarah Halsted: Yes, it’s my very first podcast.

Paul Trudelle:  So we’re gonna make it a good one.

Sarah Halsted: So don’t be too hard on me.

Paul Trudelle:  Before we came in today, we were talking about different cases that we’ve come across. And the one case I thought we would talk about a bit today is the Estate of W. J. Halliday, H-A-L-L-I-D-A-Y. It’s a 2011 decision out of Manitoba and I thought it has a number of nuggets that we could touch upon dealing with interpretations of Wills, the doctrines of ademption and arguments that can be made for or against ademption in the particular circumstances that we’ve seen there.

Sarah Halsted: Yes, I agree, this is a very interesting case. It sort of springs out of the actions of a testator that may, according to some, be interpreted as inconsistent. So here we have a testator, Winnifred Joyce Halliday. She passed away October 18, 2007 and left a Will January 13, 2006 which was admitted to probate. The Will contained the following clause, which we’ll just call 3(c) for simplicity: so her house and land, excluding contents, shall be sold and the proceeds from same shall be paid over and conveyed to Sherwood Home in Vernon, Manitoba.

Paul Trudelle:  I think there’s about seven charities that she gave the…for the proceeds of her home.

Sarah Halsted: And then she says “all for the general purposes in equal shares”. And then following this, she says “In the event my house and land have been sold prior to my decease, then to transfer and deliver the sum of $10,000 to each of the named beneficiaries”.

Paul Trudelle:  So the issue was the interpretation of that clause in light of the particular complicating fact and that fact is, the deceased, after she made the Will and before she died, she transferred her house to her son. The consideration for the transfer was that the son moved from Alberta where he was living and working and moved to stay with the deceased and took care of her, so that’s what the judge found to be the consideration for that transfer. The particular Will interpretation question arose when the executor asked for directions regarding the interpretation of that clause that you just told us about. The executor took the position that because the house and the lands were disposed of prior to death, that the gift of the proceeds of the house had adeemed. And he further argued that the second part of the clause, the clause that said that in the event that my house and land had been sold prior to my decease, then to transfer and deliver the sum of $10,000 to each of the named charities. He took the position that because the house wasn’t sold, that clause wasn’t triggered and therefore that part of the gift, the $10,000 to each of the charities, also failed.

Sarah Halsted: Okay. So now I’ll tell you a little bit about the doctrine of ademption. This was explained by Newbury, J. A. in Wood Estate v. Arlotti- Wood, a 2004 BC case. So essentially the rule of ademption is where a specific bequest adeems or fails, if at the testator’s death the specified property is not found among his or her assets, either because the testator has parted with it or because the property has ceased to conform to the description of it in the Will or because the property has been wholly or partially destroyed. So the doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the interior question of whether the gift in question is a specific legacy and therefore subject to ademption, or a general one. And Paul can tell you a little bit about specific and general legacies.

Paul Trudelle:  Right. The question was whether the gift of the property was a specific legacy or a general legacy and whether it therefore was subject to the doctrine of ademption. The Court went over what a specific legacy was. A specific legacy is something or some interest in a thing which forms part of the Estate. It must be distinguished from the whole of his personal Estate. It must be identified by a sufficient description and separated and taken apart or set aside for a particular legatee from the general Estate. A general legacy may or may not be part of the testator’s property. It has no reference to the actual Estate of his property. It’s a gift of something which the testator leaves sufficient assets that must be raised by his executors out of his general Estate. So it’s a bequest of money, a certain amount set aside and if that’s the case, then it won’t be subject to the ademption because it’s not something that would otherwise disappear. It won’t be subject to the general doctrine of ademption. It may be that there is not enough of the general Estate to satisfy it but it’s not the same as the specific legacy which may no longer exist. In this case, the Court found that the gift of the property, the first part of the bequest, was a specific legacy. It was the proceeds of the sale of the property. Because the property did not exist, then that bequest failed. It adeemed and the gift failed. The difficulty, though, arose or what the Court then turned to the second part of the bequest which said that in the event the house had been sold, to deliver $10,000 to each of the named beneficiaries. And the Court dealt with the arguments raised by the executor there.

Sarah Halsted: The executor argued that because all of the bequests to charities existed in the same clause, the clause had to be read together to mean that any gift to the charities must come from the proceeds of the sale of the house and the land. As there are no proceeds of sale from the house and land, the gift fails.

Paul Trudelle:  Right. And the Court didn’t quite accept that. They looked at the wording of the second portion of the clause and said that it was…its meaning was clear, using the ordinary meaning of the words. Simply put, that clause provided that if the house was sold prior to the testator’s death, then each of the charities would get $10,000. There is no wording that required that the gift to the charity come from any specific source or fund or that it come from the proceeds of the sale. And the Court found that the gift was therefore a general legacy and it would come out of the general Estate, as opposed to that specific asset, the house.

Sarah Halsted: And the executor had a second argument and said that the sale of the house was a condition precedent to the gift. So that because the house and land was never sold, the condition of precedent was not engaged and the gift fails.

Paul Trudelle:  Right. And the Court dealt with that one again by disagreeing that it was…firstly they felt that it wasn’t a condition precedent, there was no conditions for the beneficiaries to meet. It just dealt with the actual assets. If the house existed, then it was to be sold and the proceeds were divided. If the house didn’t form part of the Estate, then the charities would get $10,000 each. They didn’t feel that it was an actual condition precedent. In the alternative, the Court countered the argument by saying that this was a condition precedent that couldn’t be satisfied because of the actions of the testator. And in that case, where it’s the actions of the testator that made the condition precedent impossible, then the conditions were…are generally disregarded and the gift is upheld. And the Court referred to some case law on that point.

Sarah Halsted: So essentially the conclusion was the principle confirmed of the testatrix was not the sale of the house and land but rather was the gift to the named charities. And  it was held that that clause left a valid gift to the named charities in the amount of $10,000 each which was to be paid out of the general revenues of the Estate in the ordinary course of the administration of the Estate.

Paul Trudelle:  Right. And just one point before we leave this case. The Court referred to some evidence that was before the Court of the drafter of the Will and advice that the drafter had given to the testator on the execution of the Will. We don’t know what that evidence was, although the Court does say that they’ve disregarded that evidence. A Court of  construction, the Court stated, must not consider the evidence of the drafter of the Will as to the testator’s intention. As well, the Court must disregard any evidence from witnesses as to their understandings of the testator’s intent. Although the Court is to put themselves in the armchair of the testator, in this case because the wording of the Will was sufficiently clear, the extrinsic evidence wasn’t relied upon and not admitted. Well, thank you very much, Sarah, for your comments on that case. I think it’s a helpful case to refer to in these types of circumstances.

Sarah Halsted: And thank you very much for your instruction, Paul.

Paul Trudelle:  Okay. We look forward to hearing from you, as always. You can send us an email at hull.lawyers@gmail.com and be sure to visit our blogs that come out every day on estatelaw.hullandhull.com where you’ll find even more information about today’s practice of Estate law. We hope you enjoyed our show. I’m Paul Trudelle.

Sarah Halsted: And I’m Sarah Halsted. Until next week, so long.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

This week on Hull on Estates, David M. Smith and Nadia Harasymowycz discuss the removal of an Estate Trustee.  Specifically, they refer to the case Johnston v. Lanka.

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

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

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

Removing Estate Trustees - Hull on Estates- Episode #242

Posted on March 15, 2011 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to episode #242 on Tuesday, March 15, 2011.

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.

Nadia Harasymowycz: Hi and welcome to another episode of Hull on Estates. I’m Nadia Harasymowycz.

David Smith: And I’m David Smith.

Nadia Harasymowycz: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

David Smith: Good afternoon, Nadia.

Nadia Harasymowycz: Good afternoon, David. How are you?

David Smith: I’m good. Nadia, we talked about podcasting today on an issue that comes up periodically in our practice of estate litigation, and there’s a recent case on point we’ll discuss. And, of course, that issue is, the whole idea of removing trustees when and where you can do it and under what circumstances.

Nadia Harasymowycz: Absolutely. And certainly an interesting topic and one that I think we’re probably seeing slightly more recently, as is probably evident by the fact that a case has recently been reported in the OR’s.

David Smith: Right, and certainly it’s been somewhat top of mind in the mainstream media. I know the Globe recently reported on the Penna Estate which got a lot of press and that was an issue where the actions of executors tend to be top of mind for people out there who don’t routinely run into estates and trusts issues but can see how the Courts view conduct of trustees that offends the principles of justice.

Nadia Harasymowycz: On that point, I suppose we should all make a general note that when you’re preparing your Wills and any sort of direction on this point, that you should really consider who it is that you’re picking and why it is that you’re picking them.

David Smith:  That’s right. And from a planning perspective, the choice of an estate trustee…and of course we use that term interchangeably with executor in Ontario…is really pivotal and revolves around this whole idea of trust and what it means to be a trustee. Now certainly the general sense I’ve had with respect to removal of executors is that it’s not always as easy as one might think to remove an executor. And why would that be, do you think, Nadia?

Nadia Harasymowycz: Well from the case law and the general statutes, it seems that there’s a lot of deference to a testator and their decision-making as to who it is that they’ve chosen. We don’t necessarily always know why but it’s implied, based on the nature of the document, that the choice is one that the testator specifically turn their mind to.

David Smith: Right. And , you know, we know throughout the practice of estate litigation that there’s this recurring theme of respecting the intentions of the testator. And the Courts seem to give a fair bit of latitude to the actions of an executor. And I think from the outset, it’s important to point out especially when an executor is a layperson appointed by a testator as opposed to a professional trustee, that the Court’s primary concern is whether or not the property of the trust has been endangered by the management of the trustee. And as a sort of general comment, and we’ll talk about professional trustees in a minute, but as a general comment dealing with lay trustees, that is, non-professional persons appointed by a testator to look after their estate, it seems that the Courts look at the trust property and say was the trust property ever in peril? Was there risk that it was going to be dissipated or taken out of the jurisdiction or a fraud being committed? And if not, it sometimes can be an uphill battle trying to remove the executor.

Nadia Harasymowycz: Absolutely. You know, the beneficiaries are generally the ones bringing such an application and the Court’s gonna take a close look at whether or not the welfare of those beneficiaries has been compromised and whether or not the trustee has administered the estate in a manner that pays attention to all of the beneficiaries. It’s not necessarily just the one whose bringing the application that’s going to be considered.

David Smith: That’s right. And certainly, if an application is brought, we should say that it’s under Section 37 of the Trustee Act. If an application is brought for the removal of a trustee, all persons with a financial interest in the estate would be given notice of that application.

Nadia Harasymowycz: Absolutely, which I suppose leads us to a good segue into the case that was recently reported in the OR’s, which is the case of, or the matter of the Estate of Elmars Lanka. And the specific situation that happened here was that a testator made a Will which benefited his daughter predominantly of the estate, about 60%; 20% to an individual who may or may not be a common-law spouse but who was the mother of his daughter, and to his 4 siblings the remainder of the estate was divided equally. And 3 of his siblings were named as estate trustees and on an application by the mother to the estate for dependent’s support and a variety of directions being sought from the Court including the removal of the 3 trustees, these issues were specifically looked at. And if you’re interested and want to take a look at the case, it does break down the law on this point fairly succinctly and points to several other cases in the field that deal with these same issues. But the removal was at the heart of the decision. The application was eventually dismissed and the reasons provided by…

David Smith: I think it was Justice Pattillo right?

Nadia Harasymowycz: Yeah, His Honour, go in detail as to why the removal application was dismissed. And he looks at conflicts of interest that the estate trustees may have had, the potential hostility or the alleged hostility between the estate trustees and the beneficiaries…sorry the other beneficiaries because they were all beneficiaries of the estate…and the alleged failure to fulfill the duties of an estate trustee. And what he found was that the estate trustees acted in accordance with the terms of the Will and that the estate was administered appropriately, given the circumstances. Now there are a variety of details here that I would direct you to read the case if you’re looking at something on point because it is quite interesting and the specific details are very pertinent to the reasons in the decision. But I think it’s also important to note here that the costs issue, which has been coming up recently in a lot of estates matters, is again addressed. And the standard civil litigation practice is applied in this case where the costs are awarded on a substantial indemnity basis against the applicants because they were unsuccessful. And it was quite a substantial amount. It was approximately $65,000 that was awarded against them to be taken out of their portion of the estate proportionately.

David Smith: And that was for the executor’s costs.

Nadia Harasymowycz: It was for the executor’s costs. And there’s a specific note that one of the claims on the application was against one of the executors in both her personal capacity and in her capacity as an estate trustee and she was therefore forced to retain counsel in both capacities. And therefore the costs were increased so unfortunately the applicants were awarded costs on both sides.

David Smith: Well and the other thing that’s interesting and we don’t know how it will unfold in this particular case, but if an executor is forced to defend his or her actions against beneficiaries and succeeds in defending his or her actions when those actions are being criticized by beneficiaries, it’s interesting to question how that’s going to translate into an increased compensation figure which is another way in which the Courts might further send a signal to beneficiaries that applications to remove executors ought not to be lightly brought because not only would there potentially be a cost penalty, but the executors could presumably claim additional compensation for having to prepare for and attend at a trial and give evidence respecting the administration of the estate.

Nadia Harasymowycz: It’s certainly an issue. And clearly not brought up on this Superior Court of Justice decision at this point but we may see it in the future.

David Smith: And, you know, it’s funny. This whole issue of removal applications goes against the sort of grain, if you will, of estate litigation in the sense that it’s trite to say that executors have a duty to the beneficiaries. And it’s tempting to think that that duty will always override any actions on the part of the beneficiaries. But this case and other cases, you know, send the important point that the beneficiaries, while their rights are important and ought to be protected, they can’t allow disputes with the executors to cloud their judgment if the executors are in fact doing a satisfactory job of administering and distributing the estate to the beneficiaries.

Nadia Harasymowycz: Absolutely. The particular issues on this case really lend themselves to that kind of comment and review of this specific case, you know, will bring forward Shareholders’ Agreement issues, corporate assets, Primary and Secondary Will considerations. So it really is a good overview of how a removal of estate trustee application may play out in our Courts.

David Smith: Right. And, you know, again any time there’s…I just want to finish off by dealing with this issue of animosity between the beneficiaries and the executors. I’ve seen more than once beneficiaries allege that there’s animosity such that it prevents the executors from fulfilling their duty to the beneficiaries. But Courts, I think, will be very scrupulous in reviewing the circumstances. And if they see that the alleged animosity between beneficiaries and executors is sort of akin to a family spat, and doesn’t really have any substantive merit, I think Courts are gonna be very reluctant to wade into a dispute which they see as simply a waste of the Court’s time if they think that it doesn’t involve issues that substantively impact the administration of the estate.

Nadia Harasymowycz: Well and I think that brings us to the end of this week’s discussion. It’s certainly a topic that is interesting at the moment and one to watch. And thanks for listening, and thanks for joining me today, David.

David Smith: Yeah, thanks a lot, Nadia. It was a pleasure. I look forward to podcasting with you again soon.

Nadia Harasymowycz: We look forward to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estates law. We hope that you enjoyed the show. I’m Nadia Harasymowycz.

David Smith: And I’m David Smith. Until next week, take care.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

This week on Hull on Estates, Paul Trudelle and Rick Bickhram discuss a recent audio webcast titled "Scanning and Paper Reduction in the Law Office 101."  Specifically, they touch on how a law office can make the transition to becoming a paperless office.

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

Paul Trudelle - Click here for more information on Paul Trudelle.

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

Paper Reduction in the Law Office - Hull on Estates- Episode #241

Posted on March 9, 2011 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to episode 241 on Wednesday, March 9.

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.

Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Paul Trudelle: And I’m Paul Trudelle. 

Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers @gmail.com or you can visit our blog at estatelaw.hullandhull.com. How are you today, Paul?

Paul Trudelle: I’m great, Rick, how are you?

Rick Bickhram: Great. Paul and I figured that it would probably be a good idea today to speak a little bit on the paperless office.

Paul Trudelle: Yes, Rick. You and I sat in on a seminar that was given by the ABA, American Bar Association, the other day on the paperless office, law office. We’re also going through the process of moving towards paperless so we thought we’d share some of the observations made during the seminar and our observations on the move to paperless law office.

Rick Bickhram: Well one of the first observations that I made when it was introduced to our firm about a year…a little more than a year ago was that it’s definitely gonna be a shock to the environment because I could not imagine a law office going paperless.

Paul Trudelle: It’s a shock to the green environment and also to the law firm environment. Yeah, there’s a real…I wouldn’t say resistance…but it’s just a change in the way you practice or the way you look at a file. And I think that’s the hardest thing to get used to but once you get into it and you do have the appropriate supports, I think it’s a good move and it’s an easier way to practice. There’s a lot less fumbling, a lot less looking for files and papers and documents once you get right into it.

Rick Bickhram: Absolutely. And one of the benefits that we have had over the year has been…we’ve been taking small steps going through separate phases where we’ve been phasing certain things out. And that’s what the purpose of the seminar, the ABA seminar that Paul referred to earlier, that was the purpose of the seminar.   It took, I guess, it’s audience through the steps, what I call phases, where we would eliminate certain things such that the members of your staff transition into the paperless world.

Paul Trudelle: Right. And I think that’s the first step is to assess where you are now, what technologies do you have, how do you use paper, how do you handle paper when it comes into the office and where does it go in the file, and where do you want to be. I think one of the neat points that was made is that there’s paperless, meaning no paper, and paper-less or less paper. And I think that’s probably where most law firms will end up is at the less paper part of it. There’s still going to be a number of documents that you need. In the seminar they were talking about evidence, information is on paper, that’s the record that we have of transactions. In many cases, it’s hard to get away from that completely. We still…we deal with Wills and in the realm of Wills, you still need the actual physical piece of paper with signatures on it. And while we can scan that and keep it in the file, you still need to have that hard copy. But I think it’s important to note that most all other papers, and even the Wills that we deal with, can be scanned in, put into an electronic format and not sit in our filing cabinets.

Rick Bickhram: Absolutely. And one of the little nuggets that we’re a little different from the ABA and I guess the CBA was that in the seminar they were talking about certain documents that they’re required to keep by law. And again, I don’t think it’s a big difference but in our end, that’s what Paul’s referring to. There’s like the Wills and the stock certificates, certain original documents that we want to make sure to keep because we recognize them as important documents. And in that first step, I guess, the very first thing to do is..it sort of reminds me of elementary school…it’s that you sit down with your staff and you brainstorm. You define your goals and you have this discussion with your office about what you want to complete. What is it you want to achieve at the end of the day?

Paul Trudelle: Right, and I think if the goal is paperless, have that discussion on a firm-wide basis. The seminar and in our firm, you need to have people who are going to champion the cause, who are going to be pushing to move towards paperless because on the other end of the spectrum you’re going to have…I won’t refer to them as dinosaurs but…people who are not early adapters who are late adopters or non-adopters or whatever term you want to give them. People are gonna be resistant or reluctant to make that move, who are still going to have the hidden filing cabinet somewhere in their office where they keep all of the paper. But you need to get everyone on side, work with, have champions who are going to lead the cause and work with those who aren’t leading the cause who may be resisting, to make sure that they have buy in and that their needs are addressed as the move goes forward.

Rick Bickhram: Exactly. And that’s the second step. Get buy in. Those are the key words. And during this phase what you’re ultimately gonna do is, you’re gonna appoint a leader. Somebody in your office who’s going to take those goals that you’ve discussed with your office and start to implement that into your office. You’re gonna have one person as the person who will go around and ensure that other staff members are following protocol.

Paul Trudelle: Right, and I guess that, getting buy in, there’s always the concern about what is gonna happen to the paper and that may be the next step, which is the third step which is to assess your needs, what you’re going to need in order to make the transition to paperless.

Rick Bickhram: Absolutely. And there’s different factors in assessing your physical needs. Number one is, you want to make sure you have enough space in your office so you can have the hardware necessary to allow you to go paperless. For instance, scanners. You want to make sure that there’s enough room to place scanners. You want to have the actual hardware. You want to have that technological capability. You’re also gonna need software. You want to make sure that you have the right software programs that your staff can rely upon when they are reviewing documents.

Paul Trudelle: So that would be document accessing software, such as Adobe for looking at the documents once they’re scanned in. A document management system of some sort so that you know where the documents are going to be going once they are put into your computer and you’ll be able to easily access them. You’ll find there’s a number of other steps along the way, subsets of that, that need to be made…where decisions need to be made as a firm or as a small business as to, you know, standards for how you’re going to name documents, how they’re gonna be saved, when they’re gonna be saved and by whom, and how you’re gonna be able to access them later on.

Rick Bickhram: Absolutely. And one of the neat, again little nuggets that I liked during this seminar was when they were discussing Adobe. They specifically referred to .pdf documents and they discussed the software Adobe. And one of the cool things about Adobe is that you can scratch, you can write, you can highlight, you can tab, you can do all these things that you can do with regular paper. And hopefully if we can transition ourselves to adapt to that technology then there will not be the need for paper. But I have to admit that I am a bit of a baby dinosaur. I need to have that physical feel where I’m actually writing something down on a piece of paper or I’m ripping or tearing something.

Paul Trudelle: And in fact, if this was a podcast as opposed to a…sorry, a video podcast, you’d see that Rick is looking at notes where he’s scratched out some notes and he’s actually highlighted them as well. But I think Rick’s point is that he could probably do that as well on the screen and we could be working off of our other technologies as opposed to our paper documents. I guess we don’t need to get away from the paper but we can have less paper. Rick’s notes can be scanned and kept forever and they won’t be cluttering his desk and he’ll know where they are. So it’s a good thing. Another little bit of technology that they talked about and that we’ve adopted is that it’s very useful to have two screens, or two monitors on your desk so that you can review one document while repairing or creating another document. You can have your email open while looking at the file and that sort of thing. So that’s something that is very useful if you are going to be making the jump to paperless.

Rick Bickhram: Yeah. One of the last things that I’d like to touch on in hardware is something that the individuals who did that seminar for the ABA touched upon and they pretty much hammered this point home which is, back-up. You’re gonna need some sort of back-up system in your office, if it is that you are going to go paperless. And the reason being is I’m sure if you own a computer out there, at some point your computer has crashed or its slowed down. And you’ve thought to yourself, I’ve got to reformat my hard drive or I have to throw this one out and get a new one.   You can’t do that when you’re practicing law unfortunately. So that is the goal of having a back-up system in place. And one of the best things to do there may be just to consult with an IT professional so you can get some strategies on how you can back-up your system. Maybe every night, maybe every hour, depending on the practice.

Paul Trudelle: And I think just the nature of the practice now and the technologies used by most firms, that should be something that’s considered in any event, even if you’re not going paperless, is how it’s backed up. One of the points from the seminar is that having an electronic office or a paperless office is probably more secure than not having one. If there’s a fire or a flood, your paper records which are not usually backed up, are gone or may be gone. Whereas if they’re in electronic format, you have them on your computer, you have them backed up and you can be back up and running if there is some sort of natural disaster or a natural disaster in no time.

Rick Bickhram: Absolutely. Moving ahead to the next step, implementing the paperless office – training. You want to make sure that once we have all this hardware and software that you’ve just spent lots of money on put into your office, you want to make sure that you also put enough money behind training your staff so they know how to use those items.

Paul Trudelle: Yeah, I think that could be a big reason why a move to paperless might fail is that the staff or the lawyers, anyone using the documents, aren’t trained therefore they don’t feel comfortable with using the technology or the software. They don’t feel comfortable or they don’t feel secure in the thought that all of the file is on the computer and therefore they maintain the back-up. And if you have the two systems going at the same time, it does lead to problems. Things aren’t getting filed properly, either electronically or in paper format, and that leads to the move breaking down. So you need to have sufficient training so that everyone is very comfortable with the technologies that you’re using.

Rick Bickhram: And the final step is a launch date. When are we gonna implement everything? When are we gonna finally go paperless? And I think this is the stage that our firm is at because we just recently discussed removing filing cabinets from our offices. And that, to me, sounded a little scary.

Paul Trudelle: That is scary to think that they’re gonna be going out the door but as you go through the process, I’m finding now that, you know, I need fewer filing cabinets. I don’t need to be walking down the hall to look for something. It’s there on the computer and I can have some confidence and comfort in knowing that everything is there. There’s a protocol for how paper is dealt with when it is received, whether it comes in by mail or fax, as to what happens to it, how it ends up in the file and how it’s saved and dealt with. So that is…it’s an exciting time when you see the filing cabinets being shipped out but that’s something that hopefully we’ll all be working towards.

Rick Bickhram: Well I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.

Paul Trudelle: Thank you, Rick. 

Rick Bickhram: And we look forward to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com.   Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Rick Bickhram.

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

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Listen to: 10 tips: lawyer-client communication

This week on Hull on Estates and Succession Planning, Paul Trudelle and Sharon Davis give insight into 10 tips for successful lawyer-client communication. 

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

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

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

10 tips: lawyer-client communication - Hull on Estates- Episode #240

Posted on March 1, 2011 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to episode #240 on Tuesday, March 1^st.

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.

Sharon Davis: Hi and welcome to another episode of Hull on Estates. I’m Sharon Davis.

Paul Trudelle: And I’m Paul Trudelle.

Sharon Davis: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle: How are you, Sharon?

Sharon Davis: I’m very well, thanks, Paul. And you?

Paul Trudelle: Very good, and welcome to March.

Sharon Davis: We are there, aren’t we?

Paul Trudelle: We’re there.

Sharon Davis: It’s hard to believe.

Paul Trudelle: We’re over the hump.

Sharon Davis: Spring.

Paul Trudelle: Winter is short now.

Sharon Davis: I thought perhaps today we might discuss an interesting Continuing Legal Education program that I attended recently. It was held by the Law Society of Upper Canada and it was called ‘Defining Issues and Strategies with Litigation Clients’.

Paul Trudelle: Yeah, you told me a bit about that and I thought it would be well worth discussing. I understand the presentation was to an audience of lawyers and how to deal with litigation clients. So I thought maybe we’d look at what you’d discussed there and see how that might apply to clients dealing with lawyers, which for probably what may be the first time. So that might…the insight that the lawyers were given and what they were told to bring to the table when dealing with clients for the first time in a new litigation matter might help clients understand what the process is and what lawyers are looking for when they first meet with their clients.

Sharon Davis: Exactly. All of that really does contribute to an effective, you know, client meeting and a client relationship because you’re forming the basis for that as you go along. What I thought was interesting about this particular CPD as well is that it wasn’t attended by just new lawyers. It wasn’t something where I know we have this ethics and practice management emphasis now and it wasn’t just new lawyers. It was really a variety of practitioners from all different levels. So it was really nice to get that sense of, you know, what different people do in different instances and to have the benefit of the experience of people of different levels.

Paul Trudelle: Right and it seems like a really good reminder as to how you should approach the first meeting and what you should be bringing to that meeting. So the paper that we’re gonna talk about is a paper prepared by Kimberly Morris and it deals with the initial communications with your client and sets out 10 tips for success, so we should thank her for preparing that paper.

Sharon Davis: That’s right. And we want to give credit where it’s due because Jane Southren of Lerners actually did deliver the paper and so it was a bit of a combined effort in that respect.

Paul Trudelle: That’s great. So what was the first tip that they gave you when dealing with a new client?

Sharon Davis: Well I like this tip. Tip #1 is know yourself. I think it’s true in every aspect of life, for sure. You really have to know how do you like to communicate and what is the client’s preferred method of communication as well because communication again is a two-way street and it has to be something that works for both. And I don’t know about you, Paul, but I’ve certainly found that some people are very email proficient and they really enjoy using email. It’s a very efficient way to get a hold of them. Other people would just rather you pick up the phone and talk to them and you’re not gonna get the same response if it’s by email if they’re really not so inclined.

Paul Trudelle: Right and I think the opening…the initial first couple of dates, let’s call them, with the client are very important. You need to get a lot of information if you’re the lawyer. And as the client you need to give a lot of information and at the same time, the lawyer has to give a lot of information about the process and what next steps are and what the chances for success are. So there’s a great deal of communication and information that needs to be obtained and given and knowing how best to do that with your particular skill set and with the client’s particular needs and desires is very important.

Sharon Davis: That’s right. And so tip #2 is be organized. So know what you want to accomplish in the first communications with the client. Practical matters. How long do you want the initial meeting to be? Do you want them to sign a retainer agreement? Do you want to follow…schedule a follow-up meeting which would include giving your client homework? Some clients like homework; some don’t like homework so actually that’s a bit of a negative connotation sometimes. But you have to have a plan, I think, and that way once you’re consistent and you’re setting that out for your client in an organized manner, they’ll understand what to expect from you going forward as well.

Paul Trudelle: Right and I think being organized is important for the lawyer going into the meeting, but also for the client as well. Have a schedule or a chart of the important dates, the important players. Have the important documents that you need and in our context, you know, the Wills, Powers of Attorney, any other letters like that that are relevant. Have those available at the first meeting so you’re not fumbling to get them, you’re not needing to follow-up at a later date. So if you have all of that and you’re organized going into the meeting, both from the client side and the lawyer’s side, I think it’s a much more productive start to the relationship.

Sharon Davis: Absolutely. And I think clients sometimes do get into the emotion of what’s going on with them, and rightfully so and understandably so. But sometimes it’s difficult to get all of the information that you do need. They don’t recall all the particular dates. I mean, the details…the devil’s in the details but, you know, so are the lawyer’s, I guess, because it really is important to us to know all of that. And I always find it helpful, some clients will come armed with a whole chronology.

Paul Trudelle: A chronology is always very helpful and it helps…it gives us a script to follow as to what’s happening.  One of the points in the paper is that clients often stray into elements of the story that are not relevant and it’s important for the lawyer to keep the client on track. However, having said that, at the first meeting you’re not always aware as…either the client or the lawyer…as to what is entirely relevant. So you want to get all of the story or the entire fact background as fulsome as possible while still keeping it to the relevant issues. And it’s important for the lawyer to try to do that and for the client as well.

Sharon Davis: Tip 3 is to be clear. And I think this really does help with clients. If they understand what you will charge, you know, how the matter is going to unfold, what are the precipitating events and how…what they can look forward to as they go forward. I think communicating all of this is really important. And you have to make sure they do understand what you expect from them. It’s not as though they can hand it over to you and then you’ll let them know at the end when they get all their money and send them the cheque. It doesn’t quite work that way.

Paul Trudelle: That’s right. I think it’s very important to be clear from the client’s point of view as to what the expectations are, what can be achieved and what can’t be achieved and how you’re going to get there and what the steps are along the way, so that there are no surprises or as few as possible as the matter unfolds.

Sharon Davis: And it may be that some of these things would be set out in a retainer. You may give that retainer at your first meeting. You might want to send them away with the retainer to read it and understand it before they sign it. You might want to explain it to them, you know, while they’re in the room with you. But all of these things will aid setting up what exactly it is that they can expect going forward. I always find that basically clients will judge you by whatever you promise as a minimum expectation, so you know, you don’t really want to set their expectations in an area where you really can’t fulfill them. Now tip #4 is be knowledgeable.

Paul Trudelle: And I think the thrust of that point is to not get into areas of law that you’re not familiar with. If you’re not a…if you don’t practice a certain area of law, then don’t start there. Send the client off to a lawyer who will be better able to help the client in that particular area.

Sharon Davis: Tip #5 is be cautious, and I guess I’ve kind of touched on this but promising and delivering. Focus on under-promising and over-delivering. And again, I think client satisfaction is completely tied to this. And if you say you’re going to achieve something, again they’re going to expect that’s the minimum you’re going to achieve. They’re not going to expect that that is, you know, the best you’re going to do. And so ultimately, if you want a happy client at the end of the day, managing their expectations is very important. We hear a lot about that but it’s important for clients to understand that as well. We can only know so much about how a case is going to unfold.

Paul Trudelle: Right and as a client going in to see a new lawyer for the first time, I don’t think you should be looking for a cheerleader or someone who’s going to be telling you that you have a no-lose case. You want someone who’s gonna give you a realistic view of the case and make sure that your expectations are in line with the realities of the circumstances.

Sharon Davis: That’s right. Tip #6 is be a good listener. Now this one really is important because sometimes again, you know, when clients stray all around, you really do have to be able to understand what the issues are and to be able to ask the right questions. This is your client’s dispute and not yours and so it really is your job to listen and ask the follow-up questions that will elicit all of the relevant facts.

Paul Trudelle: Right and I think that sometimes the clients come in not knowing what the relevant facts are and you need to be able to listen to what they’re saying and probe deeper into certain areas to make sure that you’re getting what is relevant to the matter in issue based on the area of law that you’re dealing with.

Sharon Davis: Now here’s the challenge. Tip #7 is be a good note taker. So you have to do that while you’re being a good listener and sometimes that can be a little bit difficult to do. And I know sometimes you might have, you know, part of setting up what the team is, you might have an associate or a student or whoever’s going to be assisting on the file. Perhaps you might want to introduce them at that particular point at the very first meeting. And then you’ve got the ability to have someone taking thorough notes. You’ve got the ability to have the client be comfortable with that person and the team, and still be a good listener at the very same time.

Paul Trudelle: Yeah, so you’re a good listener, you’re taking notes and I think those notes are very important because a lot of information is on the table at that first meeting. And it’s important that the lawyer be able to get all of that down and pull it back when necessary. The next point is to ask questions. When you’re listening to the story, you need to ask questions in order to get out relevant information or information that the client may not feel is necessary or relevant, which may have some relevance in your experience. And also just to get a little bit deeper and to sort of focus the conversation as well.

Sharon Davis: You have to ask the tough questions too. And as you were saying, you’re not just a cheerleader. Sometimes what you’re doing is advising someone on how to manage a bad situation and the fact is that you can’t tell them everything they want to hear because that simply isn’t, you know, the state of the law as it applies to their facts. And that’s unfortunate but they need to know that and that’s a lawyer’s job as well.

Paul Trudelle: Yeah, and I think the questions to get the helpful evidence are important but also the evidence that may not be so helpful, so that you know what’s coming and you can advise how to deal with those facts that may not be just the way you like them. The next point is to get the relevant documents. In an estate matter, the Will is obviously a very important document. Other notes and letters, correspondence can be very important and it’s always a good idea for the client to come to the meeting with those or I sometimes ask that they get sent beforehand so that we have a chance to look at what the underlying documents are before that meeting.

Sharon Davis: The last tip is to be candid. And while we’ve touched on the fact that you have to give them, you know, the straight goods on what their chances are, sometimes these things can change over the progress of a matter. And so you may think, you know, things are looking pretty bright in the beginning and something happens or a fact comes to light and that changes. And you really do have to be very candid about that. You know, if you think the dispute can be solved with a telephone call to the other side, you know, then you tell the client and you go that route. On the other hand, you know, if you think that this could go on for years and years, many clients are very surprised to know or to find out that litigation can go on for years. They seem to think that once they come to a lawyer, it’s gonna be settled ASAP.

Paul Trudelle: Right. No, it’s important to know the potential outcomes and also the timeframe involved, the costs involved. I think if you’re not…if the client doesn’t know that before coming in, I think that just leads to disappointment down the road. So all of those pertinent facts on both sides need to be put on the table.

Sharon Davis: I certainly think that all of those tips, you know, if they’re done well results in a really strong and good client/lawyer relationship. And that, at the end of the day, is what’s going to achieve good results because it really is a combination of the two and, you know, if you can set that up, the earlier you can, the better.

Paul Trudelle: I completely agree. Well thank you very much, Sharon. That was a great paper and I’m glad you brought that to our attention.

Sharon Davis: You’re welcome. I think that about brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.

Paul Trudelle: Thank you, Sharon. We look forward to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com and be sure to visit our blog. I understand you’re blogging all of this week, Sharon?

Sharon Davis: I am, it’s a lot of me this week so tune in.

Paul Trudelle: Yes, so read Sharon this week and read all of our blogs. Thank you very much. I’m Paul Trudelle.

Sharon Davis: And I’m Sharon Davis.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

This week on Hull on Estates and Succession Planning, Natalia Angelini and Nadia Harasymowycz discuss a recent Institute, Brave New World: Building a Thriving Trusts & Estates Practice in the 21st Century, which was held on Thursday February 3, 2011.

There were variety of topics at the Institute, including:

· Planning for Disabled Beneficiaries: How Recent Legislative Amendments have Changed Estate Planning

Nimali D. Gamage, Jan Goddard & Associates

· The Role of Social Media in Marketing an Estates and Trusts Practice

Suzana Popovic-Montag, Hull & Hull LLP

Terry Fallis, Thornley Fallis Communications

· The Impact of Divorce, Remarriage and Common Law Relationships on Estate Planning
Daniel S. Melamed, Torkin Manes LLP

· The Legacy of Hare versus Hare:Limitation Periods and Promissory Notes
Ed Esposto, Blaney McMurtry LLP

·         Damages for Mismanaging Trust Investments
Sean Lawler,Shibley Righton LLP

· The Role of Collaborative Law in Resolving Estate Disputes
Clare E. Burns, WeirFoulds LLP

· Recent Cost Decisions in Estate Litigation
Justin de Vries, de Vries Litigation
Kimberly A. Whaley, Whaley Estate Litigation
Jane E. Martin, Eisen Graham

For more information on New World: Building a Thriving Trusts & Estates Practice in the 21st Century, please click here.

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

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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

Institute - Hull on Estates- Episode #239

Posted on February 15, 2011 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #239 on Tuesday, February 15.

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.

Nadia Harasymowycz:   Hi and welcome to another episode of Hull on Estates. I’m Nadia Harasymowycz.

Natalia Angelini: And I’m Natalia Angelini.

Nadia Harasymowycz:   If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Natalia Angelini: Well hello everyone. Today Nadia and I thought we’d talk about the recent Institute that took place on Thursday, February 3^rd.

Nadia Harasymowycz:   It…just for everyone out there, if you don’t already know that lawyers in 2011 are required to continue with our CLE, that’s another reminder. And the Institute was accredited for some time and it sold out early. So if you’re looking to hit your CLE hours, I would keep your eyes posted on a variety of websites including the Ontario Bar Association so that you can sign up and sign up often for our upcoming CLE’s. 

Natalia Angelini: Yeah, that’s a great idea. It was a really interesting day. There were a variety of topics discussed. I’ll just run through them in case anyone is interested in getting the materials, they can do so. We had Nimali from Jan Goddard’s firm discuss planning for disabled beneficiaries. We had our own Suzana Popovic-Montag and Terry Fallis talk about the role of social media and marketing in estates and trust practice, and Nadia and I are gonna touch further on this in our discussion today. And there was also a discussion about the impact of divorce and remarriage and common law relationships on estate planning and Daniel Melamed from Torkin Manes addressed that topic.

Nadia Harasymowycz:   There were 3 other speakers who filled up the afternoon and they spoke on Hare and Hare and limitation periods and promissory notes and the legacy of that decision. That was Ed Esposto of Blaney McMurtry. And then there was Sean Lawler of Shibley Righton spoke on damages for mismanaging trust investments. And Clare Burns of WeirFoulds spoke on the role of collaborative law in resolving estate disputes. And last but not least, we had a panel of 3 lawyers, Mr. Justin de Vries, Ms. Kim Whaley and Ms. Jane E. Martin spoke on recent cost decisions in estate litigation. So it was a…certainly a well-rounded program that gave a lot of insight to topics that are certainly relevant in estates and trusts recently.

Natalia Angelini: Right and I have a particular interest in the topic Clare Burns addressed, which was the role of collaborative law in resolving estate disputes. It’s a new thing that is coming to estates and hopefully coming to estates and where I’m excited about it. It’s definitely been underway in the Family Bar for quite some time.

Nadia Harasymowycz:   I think one of the things that most of these papers had in common is how an evolving practice can really learn from, you know, different areas. And one of the things that Suzana and Terry spoke about which we’re gonna give you a little insight on today, is how using social media to improve your practice and get yourself a little jumpstart in terms of moving forward, can be helpful. 

So I’m gonna give you a quick run through of her paper. And Suzana started with looking at the use of social media, and by that we mean a variety of things, including Facebook, Twitter, LinkedIn, blogs, podcasts and what-not. And basically using media for the purpose of marketing which is somewhat new in the legal field. Suzana ran through a variety of marketing techniques that worked for our firm and we’ll start with a quick synopsis of those, just in case you want to take on that challenge.

Natalia Angelini: Yeah, and for those of you out there that are sort of traditionalists and haven’t, you know, got on the bandwagon yet with this sort of, you know, new way of marketing, it really, in my view, is something that can’t be ignored. I mean, we are moving at a fast pace with computer, you know, social media advancements and it’s so helpful…we’ve found in any event…to take advantage of all the new ways we can reach out to people.

Nadia Harasymowycz:   I think on that point, it’s probably important to note that where it may be a little foreign to our generation, my cousin has been on a computer since about the age of 2, fully knowing how to navigate. So as long as we can tap that for the future, we should try to do our best.

Natalia Angelini: Yeah. It certainly reflects the reality of what people, you know, are doing out there. And this is something that, you know, is definitely only gonna be increasing going forward.

Nadia Harasymowycz:   Absolutely. So one of the points that we can’t forget is that when we’re using social media, we have to still hit the guidelines and the important factors of marketing. And those were outlined by Suzana and Terry with basically looking at how you start your practice. We had the good fortune of having Rodney Hull as one of our founding partners who brought a sense of leadership and knowledge and passion for the field, which is, of course, an obvious benefit if you have something along those lines. But if you don’t, learning your field is truly important and that’s part of the specialization of what we do. And I think that can be applied across any practice, whether it’s estates or family or whatever it is you want to work in.

Natalia Angelini: That’s right, Nadia. And one of the next things that we find helpful is creating a user-friendly website. We’ve created one at our firm, we maintain it and it’s really intended to provide our clients and colleagues with a strong sense of connection to our firm and it also assists with learning the product, as Nadia mentioned. We’ve got things like links that describe our practice, links that lead to our blog, newsletters, etc. And this kind of…having this kind of website really, we found, is helpful in attracting clients and colleagues and keeping them informed about not only the firm but also new things that are happening in the area.

Nadia Harasymowycz:   I think you can even take that a step further and say that with all these new avenues of media available to us, it’s really about the dissemination of information. And by creating a website, you’re able to put out information that represents yourself as a firm, represents yourself as a practitioner and represents your field of practice in a way that allows others to really understand what it is that you do and how you can assist them, if you’re working in either litigation or a strictly solicitor’s practice. Either way, whatever you do, putting information out there about what it is exactly that you do, should certainly help your practice.

Natalia Angelini: Right and that sort of feeds into Suzana and Terry’s next point about giving in order to get. So by giving this information out, you end up getting…often getting other lawyers and colleagues calling you, wanting to run ideas by you. And that’s something that we welcome, and it really does help build, you know, relationships in this field as well.

Nadia Harasymowycz:   It’s funny, these points keep flowing into one another but Natalia just spoke about building relationships. And that’s really the next facet of the process. You know, in maybe 20 or 30 years ago, everybody would have had something called a Rolodex on their desk, which is somewhat outdated now. But really the concept is still the same – when you meet somebody and you speak with somebody, it’s a card that gets filed in your head or in your Outlook and that’s a relationship builder so that next time you need something, you can give somebody a call. Or if a client calls and said you know I need a recommendation for so and so, you have somebody that you can go to. And that’s one of the things that social media has allowed us to do incredibly simply with functions like LinkedIn or Facebook or websites that offer information. You can certainly create a Rolodex, if you will, in a much simpler fashion.

Natalia Angelini: Right. Another thing you can do is start a newsletter. And I mean our firm started that in ’97 so it’s been quite a few years. It’s called The Probater and we publish it four times a year. And, you know, not every firm may be able to do that. I mean every firm’s got different focuses and depending on the size, you may have, you know, things you want to put more attention to than others. But we found that it’s a good tool to really get more general, sort of, solicitor-bent topics addressed and that are really of interest to a cross-section of our readers.

Nadia Harasymowycz:  And I think that, you know, I’m gonna cover a few of the next points fairly quickly that were given at the seminar. But I think what they can all be covered under is the concept of knowing your audience. Knowing who it is that you want to speak to and what it is that the information they’re looking for and giving it to them. We at Hull & Hull have managed to do that with our Breakfast Series which are widely attended. And again, as a side note, have been CLE approved. So we will continue trying to get that approval for the future. But knowing your audience and getting people that are interested in your topics and hitting those points is critically important. And that has to do with using email effectively, podcasting and blogging and getting the information that is integral to your practice to the people that need that information.

Natalia Angelini: So that’s a good point, Nadia. I think we’re gonna be ready to wrap up soon. And I just sort of…you know, we wanted to leave you with thinking about, you know, the old rules and the new rules. With this new technological age, we really need to take a different approach to marketing. And you know in the old days, you could either, you know, buy expensive advertising or work your way through the media by, you know, great articles being written about you. And now, you know, we see…as Nadia and I have been saying…more attempts to reach people through web content and quality of material being published.

Nadia Harasymowycz:   I think the important thing to note is that there’s lots of avenues out there that you can reach people who may be potential clients in the future or may simply be one of those individuals added to your Rolodex. But whatever it is that you’re trying to achieve in your practice, whether it’s solicitors, barristers or a little bit of both, you should take a thought or take a minute to think about what avenues of social media can help you move yourself forward.   And not to forget that these new and upcoming trends are probably here to stay and that we should really embrace them.

Natalia Angelini: Yeah. Great. So thanks everyone for listening. And until next time, take care.

Nadia Harasymowycz:   We look forward to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com and be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion and today’s topics and the practice of estate law. We hope that you enjoyed the show.  I’m Nadia Harasymowycz.

Natalia Angelini: And I’m Natalia Angelini. Take care.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Listen: Second Marriage Planning Issues

This week on Hull on Estates, Julia Evans and David Smith discuss how to address and minimize future conflict between a second spouse and children from the previous marriage.

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

Julia Evans – Click here for more information on Julia Evans.

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

Second Marriage Planning - Hull on Estates- Episode #238

Posted on February 14, 2011 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to episode #238 on Tuesday, February 8, 2011.

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.

Julia Evans: Hi and welcome to another episode of Hull on Estates. I’m Julia Evans.

David Smith: And I’m David Smith.

Julia Evans: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

David Smith: Good morning, Julia.

Julia Evans: Good morning, David.

David Smith: So Julia, we were talking about topics and whenever I have the opportunity to podcast with you, we’re always sensitive to the fact that unlike myself who only practices litigation, you had a previous career doing planning work and solicitor’s work as I understand it. And so what we always try to do when we podcast together is give some thought to planning issues. And in particular, you had a specific sort of area you thought we should podcast on today. And what was that?

Julia Evans: Well it’s sort of a hot spot, I think, as a solicitor drawings Wills and that is, where you have second marriages. And so you have an individual coming in to see you with a partner who is not their first partner and they often bring with them children from previous marriages and their own assets held in different ways. 

David Smith: And so I guess the challenge there is to make sure that not only are you providing for the children of the first marriage and the spouse, but also addressing and perhaps minimizing the prospect of future conflict which regrettably we so often see in the practice of Estate litigation.

Julia Evans: Absolutely. And in particular, I in practice found that there were two general approaches that one can take. Firstly…well before that, the first recommendation would always be to, in my view, each of the partners should have separate counsel because their interests may not be perfectly harmonious. But that said, I think sort of two approaches would be 1) you know from a probate tax standpoint, to have the partners hold their property jointly, as joint tenants and so on but then perhaps consider entering a contract with independent legal advice, a domestic contract, that will determine their obligations with respect to the ultimate distribution of their Estates.

David Smith: Right. And I guess inevitably that has to do with the differing expectation of whose gonna benefit in the event that one predeceases the other and that’s gonna tie into the fact that they both come into this marriage with different first…different families. And you know, it’s…we’re approaching Valentine’s Day and it’s not a particularly romantic notion but the reality is that if you’re entering into a second marriage, there’s got to be some sort of business-like decisions made in order to ensure that things are arranged in an appropriate way. And again, to repeat myself, the concern has to be to avoid conflict after you’re gone between your second spouse and the children of the first marriage.

Julia Evans: Yes. A second way you can approach that same issue is to have each spouse hold their property individually and then leave their interest in it to the surviving spouse in some kind of trust with the remainder interest flowing over to their children of the first marriage. But…

David Smith: I guess an example of that would be holding the house as tenants in common rather than jointly?

Julia Evans: Yes.

David Smith: Right. Okay. What other things?

Julia Evans: Well lately I’ve run into an issue a couple of times in practice where we have the breakdown of a marriage and a divorce and we have a Separation Agreement in place that requires that each of the partners holds an irrevocable designation of the other partner as a beneficiary of their life insurance. And what we’re dealing with sometimes is that that contractual obligation is breached. And so one of the partners will die and the other one will try to obtain those life insurance proceeds. And especially if the Estate is not large, can find themselves in a bit of a spot if the person who made the promise to keep them as beneficiary of life insurance hasn’t kept that promise.

David Smith: Well that’s right. And I guess there’s two ways you don’t keep that promise. Either you just stop paying the premiums on the policy or you change the designation to benefit someone other than the spouse who is contractually entitled to it. And of course, you know, the other difficulty you run into here is that it could be that there’s a dependent who has a claim against the life insurance proceeds as an asset available under Section 72 of the Succession Law Reform Act and it’s a nice question as to how the obligation under the Separation Agreement dovetails with the fact that that asset may be vulnerable and deemed to be an Estate asset available to dependents other than the spouse to whom there was a contractual obligation to leave that money.

Julia Evans: Yes.

David Smith: And so these are the kind of cases that create a lot of problems for sure. So in the planning context, though, I guess you touched on this earlier. You can have a situation where there’s a domestic contract as part and parcel of the Wills that are made by the new spouses, correct?

Julia Evans: Yes. And it’s important, I think, to get the order of the execution of the contract and the Wills well planned and have sufficient counsel, sufficient numbers of lawyers on the matter, so that each of the partners have their interest, both with respect to their Will planning and their domestic contract interests properly protected.

David Smith: Right. And I guess, you know, the interesting thing about contract law is, you know, it can bind Estates just…it survives and can bind Estates and is a very real concern, especially in cases where there’s a domestic contract. And I suppose there can be reference to the marriage contract in the Will, presumably, right? Or reference to the existence of a marriage contract?

Julia Evans: Yes.

David Smith: Right. Okay. In the limited time we’ve got left, what other things do you think we can consider in terms of the disputes that can arise between spouses on second marriages? I know one interesting case that Rick Bickhram of our office recently blogged on was a situation where there were two common-law spouses, both separately cohabiting with the deceased who asserted claims against the Estate for support. And in that decision, the Court decided that it’s quite possible to have two separate spouses with whom you cohabit, each of whom can have their own support claim, which I thought was interesting.

Julia Evans: That’s very interesting. And I can also imagine that you could have a couple who never formally divorced their first partner and then were living common-law. So you have a married spouse and a common-law spouse. I don’t know how that might play out.

David Smith: Well, you know, that’s an interesting question which we recently had cause to consider in a claim that we asserted on behalf of a woman who had never been divorced from her husband, been married for a lengthy period of time, continued to live in the matrimonial home and asserted a support claim against the Estate. And it’s a very live issue, depending on the facts, but the Court seemed reticent to recognize an entitlement to support if the period of separation is lengthy, regardless of whether or not the parties are still married. So technically you can be in a position where you’re still married to your former spouse and in a common-law relationship with a new spouse. It seems that the Courts generally give preference to the relationship in existence at the time of death. And if there is a lengthy period of separation, even though technically the married spouse could argue and meet the definition of dependent, a Court may well say that we’re not gonna give anything for support in that circumstance. But, of course, they’re all fact-specific cases, as we know.

Julia Evans: Well that’s…it’s certainly a lot of ground to cover.

David Smith: Yeah, absolutely. And so I think what we want to consider, and I think sort of the kind of wrap up commentary and brings us full circle is a lot of these problems can be avoided with good planning.

Julia Evans: Yes, and open family discussion so that you minimize the shock factor when someone dies and leaves a surprising distribution of their Estate or life insurance proceeds and so on.

David Smith: Yeah, I mean, you know…well that’s right, and we always counsel clients that communication is the key. But, of course, it goes without saying that these are very difficult discussions to have. And, you know, it’s understandable although a lot of people will not have discussions with their children for fear of upsetting the marriage. And the reality is that a lot of these issues are left until after death. And it’s gonna depend upon the extent to which appropriate legal counsel is engaged. And as you pointed out, independent legal advice given to each spouse to ensure that the intentions of the testator are protected and are immune from any attack.

Julia Evans: Yes.

David Smith: Alright. So look, it was great talking with you, Julia. And I think that brings us to the end of today’s discussion. Thanks for listening to all of our listeners, and thanks for joining me today, Julia.

Julia Evans: It was a pleasure, David and I look forward to podcasting with you again soon.

David Smith: And we look forward to hearing from our listeners. Again you can send us an email at hull.lawyers@gmail.com. Please visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of Estate law. We do hope that you enjoyed this presentation. I’m David Smith.

Julia Evans: And I’m Julia Evans. Until next week, so long.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Listen: Dependent Support

This week on Hull on Estates, Natalia Angelini and Rick Bickhram talk about a recent decision where the court awarded dependent support to two dependents of the deceased. Click here for more information on the case discussed during this podcast or the citation is Blair v. Cooke, 2011 ONSC  498.

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

Natalia Angelini – Click here for more information on Natalia Angelini.

Rick Bickhram Click here for more information on Rick Bickhram.

Dependent Support - Hull on Estates- Episode #237

Posted on February 1, 2011 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #237 on Tuesday, February 1^st, 2011.

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.

Rick Bickhram:  Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Natalia Angelini:  And I’m Natalia Angelini.

Rick Bickhram:  If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com. How are you today, Natalia?

Natalia Angelini:  I’m good. Dealing with this freezing, snowy weather. What about you?

Rick Bickhram:  I’m loving it as well. Well today we thought…Natalia and I thought we would talk a little bit about dependent’s support applications and more particularly, a recent decision that was heard on January 19^th of this year. 

Natalia Angelini:  That’s right. This is an interesting decision that Rick and I want to take you through. And it’s where the Court awarded dependent’s support in favour of not one, but two spouses of the deceased, or two dependent’s of the deceased. So Rick, maybe you can sort of go through the facts and tell our listeners what this case was about.

Rick Bickhram:  Absolutely. And the name of the case…for those of you who are interested…it’s Blair v Cooke and the citation is 2011 ONSC 498. Now this was a motion that was being brought by the applicant. The applicant started off by bringing a dependent’s support application and she now brings this motion which was heard on January 19^th for an interim Order seeking support from the estate under Part V of the Succession Law Reform Act. Now Natalia, Part V of the Succession Law Reform Act deals generally with dependent’s support claims.

Natalia Angelini:  That’s right.

Rick Bickhram:  Could you help us understand what type of relief is being sought?

Natalia Angelini:  Well interim relief is essentially an Order that this person is seeking that will temporarily allow her to get support, until the claim as a whole is adjudicated. So as we all know, litigation can take one, two, three years, depending on how contentious.  You want the dependent to be provided for appropriately during that time frame.

Rick Bickhram:  Well put. Now the interesting twist in this case…the applicant again is…she’s claiming to be the dependent spouse of the deceased and the estate trustee respondent is also claiming to be the spouse of the deceased. Very interesting case. So the applicant files a very extensive Affidavit, pretty much setting out her 11 year relationship with the deceased. And the respondent counters with a responding Affidavit setting out her very lengthy relationship with the deceased. I wish I can get my hands on those documents. So what the judge does in this case is, he goes through both Affidavits. He looks at the law and particularly he looks over Section 57 of the Succession Law Reform Act. So Justice Belleghem takes us through the definition section of Part V of the Succession Law Reform Act and under Section 57 he looks at what is considered…what it is that a Court considers for someone to be considered a dependent. And under Section 57, a dependent is a spouse of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

Natalia Angelini:  And that’s interesting because if you look at the definition it says “the spouse” of the deceased, which would suggest on its face, to me, that it’s in the singular. However when you look further down in the definition section and you look at the definition of the word “spouse”, I can see where more than one person could be…can be trying to apply. So Rick, can you just cite that as well?

Rick Bickhram:  Absolutely. And Justice Belleghem looks over the definition of a “spouse” and he says that under the Act it states that it’s either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years. He then goes into the definition of what “cohabit” is.

Natalia Angelini:  Right and sorry, just to stop you there. The definition of “spouse” is three-fold, and that’s one part of that, right?

Rick Bickhram:  Absolutely.

Natalia Angelini:  Which applies to this case, which is, they weren’t married and they weren’t adoptive…they didn’t have a child so they fell under the third arm of that which is, not married but cohabitated for more than three years.

Rick Bickhram:  Yeah. Justice Belleghem takes us through the definition of “cohabit” and in his explanation he says “cohabit is defined to mean living together in a conjugal relationship”.

Natalia Angelini:  Whether within or outside marriage, as the Act states. So I guess that leaves room for people that have different…more than one relationship going on. Lord knows how they find the time…to potentially fall under this definition. All of those Ashley Madison users out there might…might want to think twice.

Rick Bickhram:  Okay, going along. So Justice Belleghem goes through those definitions. And then he looks at some case law and one particular case he cites in his decision is Molodowich v Penttinen and the citation for that is 1980 OJ No. 1904. And in this decision, Justice Belleghem points to the factors that a Court looks at to determine whether or not interim support should be ordered. And he looks at factors such as issues of shelter, sexual relationship between the deceased and the applicant, personal behaviour, services, social interactions, societal attitudes towards them, economic support and whether or not there are any children. In this particular case, it was Justice Belleghem’s decision that both Affidavits had sufficient information where they both could be considered a spouse, and as such, a dependent of the deceased.

Natalia Angelini:  Yeah and that’s…and I guess on the facts of that case which, you know, again as we’ve noted, we haven’t seen the Affidavits but…

Rick Bickhram:  It’d be an interesting read.

Natalia Angelini:  Yeah. I guess they must have been extensive enough to satisfy the Court that they’re both dependents and, you know, all light-heartedness aside, it certainly is, I guess, feasible for someone to be supporting two different people in the same type of relationship as a spouse, whether, you know, married or not.  So what did the judge ultimately grant?

Rick Bickhram:  Well here’s the interesting…another interesting twist in this case. It’s an argument that was raised by the respondent estate trustee. She argued that Justice Belleghem could not find the applicant…or could not award the applicant interim support here because if he did, it would preclude her from making a dependent support application. She pretty much says by finding or by awarding her interim support, he’s pretty much classifying her as a dependent spouse already. And if the Court was to look at her as a dependent spouse and her being the applicant and then look at the respondent estate trustee as the applicant, it would be tantamount to a finding that the deceased was in a bigamous relationship.

Natalia Angelini:  Right, that’s an interesting point. Interesting argument.

Rick Bickhram:  Absolutely. And Justice Belleghem said…disagreed with her. He said that pretty much there’s no way it could be found that the deceased was in a bigamous relationship because he was not lawfully married to either of them. So that, I found, was interesting. And he also said that support for a dependent is often awarded to a child and a spouse, to child and a child. It’s not necessarily because support is ordered in one situation it would preclude support being ordered in another situation.

Natalia Angelini:  Right, and as we noted earlier, you know, the definition certainly doesn’t restrict…on its face doesn’t restrict only one person being the spouse when you look at the whole definition.

Rick Bickhram:  Absolutely. So in this case, Justice Belleghem found that there was enough credible evidence where the Court could rationally conclude that the applicant could establish her claim for support and as such, he awarded her $1,500 per month for interim support.   Interesting decision.

Natalia Angelini:  Yeah. We’re seeing a lot of interesting dependent support cases coming. I mean, this is an Ontario decision and it’s definitely interesting, has interesting facts. We’ve also had some interesting British Columbia decisions coming out that I believe have been podcasted on here dealing with moral claims and support claims made by adult children that I believe don’t necessarily need the financial…weren’t necessarily financial dependents but were dependents and entitled to monies on the grounds that they are children and had good relationships and the awards were basically linked to those relationships, the quality of those relationships. So there’s a lot of interesting case law out there.

Rick Bickhram:  And this is definitely one of them. I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Natalia.

Natalia Angelini: Thanks everyone. Until next time, take care.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Listen: Parental Support

This week on Hull on Estates, Paul Trudelle and Sharon Davis discuss filial responsibility or parental support. Specifically they talk about Sections 32 of the Family Law Act which discusses the obligation of a child to support a parent.

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

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

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

Parental Support - Hull on Estates- Episode #236

Posted on January 25, 2011 by Hull & Hull LLP

Paul Trudelle: Hello and welcome to Hull on Estates. You’re listening to episode 236 on Tuesday, January 25, 2011.

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.

Sharon Davis: Hi, welcome. I’m Sharon Davis.

Paul Trudelle: And I’m Paul Trudelle.

Sharon Davis: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle: So Sharon, how are you today?

Sharon Davis: I’m very well thanks, Paul. And you?

Paul Trudelle: Very good, thanks. We thought we’d spend some time today talking about an area of the law that isn’t often explored but it’s something that may be of increasing relevance as time goes on It’s something that I came across while listening to CBC Radio 1 the other day and it’s the topic of filial responsibility, or parental support.

Sharon Davis: Yes, it’s a topic I’m very interested in. I myself have two children and my husband and I decided that we would have a second child in case the first one didn’t like us enough to look after us in old age. 

Paul Trudelle: That’s good. Hedge your bets, right, out a little bit. Yes, I hope my kids are listening because I’m depending on their support as well. So if they’re listening, maybe we’ll get right into it. There is legislation in Ontario and in a number of other provinces in Canada as well that requires that a child support their parents. Maybe we’ll turn to that specific legislation.

Sharon Davis: That’s right. It’s Section 32, the obligation of a child to support a parent.

Paul Trudelle: Sorry, that’s the Family Law Act, is that right?

Sharon Davis: Yes, the Family Law Act. It’s important to know which Act you’re in, isn’t it, when you’re looking at legislation.

Paul Trudelle: Makes it a bit easier to find.

Sharon Davis: Courts are very picky about those details.

Paul Trudelle: They are.

Sharon Davis: In the Family Law Act, Section 32, every child who is not a minor has an obligation to support in accordance with need for his or her parent who has cared for or provided support for the child to the extent that the child is capable of doing so.

Paul Trudelle: Right. And there’s been a few cases in Ontario and other jurisdictions as well that deal with that. The case law that we’ve seen and looked at states that a few factors or a few hurdles will have to be established before support will be ordered. The first is that the parent have that relationship with the child. The parent provided some support for the child during the lifetime and that’s what triggers the responsibility of the child to give support later on.

Sharon Davis: That’s right. And that’s a financial support. So if the child has had any financial support from a parent, then that’s going to meet the first hurdle. The second hurdle is, the child actually has to have the ability to pay the support.

Paul Trudelle: Right. And in any other factor, the Court looks at is, amongst the various factors that the Court can consider in determining the amount and type of support, is the need of the parent. One of the things…one of the cases that we’ve come across that dealt with this is a 1993 decision of Godwin and Balsco. In there, the Court said that although the mother didn’t provide what may be called exemplary support, there was some support financial best that the mother could do and there was also moral support and instillation of some values. And that was enough to find that the mother was entitled to some support from the child.

Sharon Davis: That’s right. There is another case and I know I’m going to mispronounce the name, Skrzypacz and Skrzypacz . I’m gonna have to give you the citation for this one. It’s 22 RFL (4^th) 450. And in this case, the mother sought support from her adult son and while the mother was in need of financial assistance, the fact was that the mother never did provide any support to the son when he was a child. In fact, she did not provide sufficient details to show that she did look after the son. And he claimed that the mom abandoned him when he was an infant and that he was raised by his maternal grandparents. So in that case, the threshold was not met.

Paul Trudelle: I think that that sort of shines a light on the type of case that develops under this. It gets into…the Courts will consider the history of the support that the parent gave to the child during the child’s infancy and then jumps forward to the present time and looks at the support that the parent may need and the child’s ability to contribute to that. So there’s a lot that the Court has to look at and consider in making a determination as to whether (a) the parent is entitled to support and (b) what type of support should be given.

Sharon Davis: That’s right. There are…there’s not a lot of case law out here on this, of course. There are a few cases but certainly it’s not something that comes up very often. The most recent case that I was able to find is a 2007 case, Daskalov v. Daskalov. And in this case, it was a step-mom but the parties had agreed that in fact the step-mom did qualify as a parent under Section 1 of the Family Law Act. And the situation was a bit of a sad one really because the son in fact had been diagnosed with cancer. And when they actually examined, you know, the means and needs of the parties, it turned out that the mom did have some need but the son did not have the capacity to pay. And in fact the mom had a 25% higher income due to her pensions than the son did. And of course the son with cancer had no ability to work or to earn any further income. And so in that case, the mom’s application was dismissed.

But you know I think that even though we haven’t seen too many cases like this to date, certainly you know with aging baby boomers and such, having provided lots of financial assistance, I would expect, to children through the years, this may very well become an issue and we might see more case law on it.

Paul Trudelle: Right. The Family Law Act sets out a section that itemizes what considerations are to be taken into account when determining the amount of support, such as the dependant’s and the claimant’s current assets and means, ability to contribute to their own support, the respondent’s or the child’s capacity to support, the party’s age and mental health. There’s a number of factors set out there. They’re similar to what we see when we’re making dependant’s support claims under the Succession Law Reform Act upon the death of a party and there is a claim for dependant’s support against the estate. So there’s a wide array of factors that the Court can take into account. Just to segue into the Succession Law Reform Act, we know that under the Succession Law Reform Act there is an obligation for parties to provide support for their dependants. A dependant is defined in the Succession Law Reform Act as including a parent and this section under the Family Law Act will satisfy the condition that the party…the claimant to be receiving support will have a legal right to support. So I think that if the claim can be made against the child for support by the parent under the Family Law Act, a similar type of claim can be made by a parent against a child under the Succession Law Reform Act if the child was to die and not provide adequate support for the parent. So I think there’s case law and the sections are relevant while the child is alive and also if the child was to pass away and the parent would have a right to make a claim under the Succession Law Reform Act for support as well.

Sharon Davis: Right. Well I certainly think that there’s room for overlap there and we’ll have to wait and see how…what the case law does and where it goes.

Paul Trudelle: Right. But I think it’s important for parties and counsel to be aware that this provision exists, that there is this responsibility created by the statute law to provide support for parents while alive and most likely upon death, as well, of the child. And that’s something that is an important remedy that’s available to parents who find themselves without sufficient assets and means and who aren’t being properly supported by their children.

Sharon Davis: That’s right. And people who might not recognize they have those rights. And certainly, you know, from the lawyer’s perspective, making sure that all of those angles are looked at and assessed properly.

Paul Trudelle: Right. Okay. Well thank you very much, Sharon.

Sharon Davis: Thanks Paul. It was a pleasure. I look forward to podcasting with you again soon.

Paul Trudelle: Thank you. And we look forward to hearing from you, our listeners. And you can send us an email at hull.lawyers@gmail.com and be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on issues that affect the practice of estate litigation and estate planning.

We hope you enjoyed our show. I’m Paul Trudelle.

Sharon Davis: And I’m Sharon Davis. Until next week, so long.

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.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.