Strategies to Prevent Estate Litigation - Hull on Estates Podcast #119

Posted on July 15^th , 2008 by Hull & Hull LLP

Rick Bickhram: Hello and welcome to Hull on Estates. You’re listening to Episode 119 on Tuesday, July 15^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.  Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Natalia Angelini: Hi and welcome to another episode of Hull on Estates. I’m Natalia Angelini.

Rick Bickhram: And I’m Rick Bickhram.

Natalia Angelini: If you want to be heard on Hull on Estates you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address, hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Today we’re going to be talking about strategies to prevent estate litigation. This is the first time Rick and I are blogging together; this should be good fun.

Rick Bickhram: Whoo hoo!

Natalia Angelini: Glad to see you’re excited, and I’m excited about our topic. I think it’s definitely something that testators want to keep in mind. So, Rick, why don’t you get us started.

Rick Bickhram: Thank you, Natalia. There really is no substitute to good planning. Good planning can go a very long way to prevent a family fight down the road when, unfortunately, someone demises and it comes time to divvy up the assets of that person’s estate. So, Natalia, what do you think are some good tools that a testator can consider when, or just before, executing his Will to help manage the estate planning?

Natalia Angelini: Well, Rick, aside from as you said, having a properly drafted Will, you say you’ve got good planning in place, and you have your Powers of Attorney in place.  Aside from those kinds of things, there are a bunch of strategies that a testator can think about, particularly if they know that in their unique circumstance, they have likely got a Will challenge brewing post-death. 

So some of these strategies are gifting assets before you die. And it can be somewhat of a dangerous strategy, but you know, with the proper advice and the right circumstances, it can have its benefits. So one of the first things you want to think about when you do this, that might be a good idea to think about rather, is getting tax advice and accounting advice and seeing a lawyer who can properly paper any kind of gifts that you want to give away.   But it definitely can be a way of ensuring that your estate is either as minimal as possible or at least cuts out some of the contentious items because you’ve already gifted them away.

Rick Bickhram: And I think this is a really good tool because let’s say, for instance, mom dies and she has two sons. She gifts all her assets to one of the sons. The son who received nothing is obviously upset about the situation, so what does he do? He goes and challenges the Will. Well, what would he get in a Will challenge if he was successful? Really not that much. If the gift aspect was done correctly and the reason being is that all of the assets in that regard would have probably transferred outside of the estate.

Natalia Angelini: Right, and I think you’re touching on a good point there. If by gifting assets before you die, you do it in a way where, let’s say, you’re transferring ownership into joint names with your favourite children, then that is something that can still be contested.  But it’s likely a type of challenge that’s harder to win than a Will challenge.

Rick Bickhram: Well, with that said, with every benefit there is a burden, and with this estate planning tool, there are many risks as Natalia pointed out earlier on. Some of these risks include, let’s say, for instance we put the subject asset into joint with the son, going back to my first example. It’s my intention here to leave this asset to my son.  Upon my demise, my son and his wife separate, eventually divorce.  That asset could be the subject of matrimonial litigation over the asset because it would possibly be considered the matrimonial property.

Natalia Angelini: Yeah, that’s right. And also it could be subject to attack by any creditors of your son’s, so that’s definitely something to keep in mind. But you know, there is a certain strategy to doing this and I think before a testator decides to go this route, some of the things they should think about are: number one, that they have a loving and trusting and close relationship with their favourite relative; that they won’t require these assets back for their own support; and that I guess that she or he accepts that they also won’t get back these assets unless they get the consent of the child that they’re gifting it to.

Rick Bickhram: All very good points, Natalia.

Natalia Angelini: Thank you, Rick.

Rick Bickhram: Now moving along, another estate planning tool, which is a double-edged sword here again, is videotaping. The testator could videotape herself explaining her intentions after the Will, but I must point out that a videotaped Will, in the jurisdiction of Ontario, is not considered a Will. A Will must be in writing.

Natalia Angelini: That’s true, Rick, but it can be a tool that can really help because you have an opportunity in a videotape first of all, to be seen and to be heard, and to explain exactly why your wishes are as they are, and why the bequests are set out as they are. And having said that, though, because it is a videotape, it can be very carefully scrutinized and little things like mispronunciations or forgotten names or fidgeting, that kind of thing, unusual phrasing, or other kinds of mannerisms, those can potentially be used against you by someone challenging a Will and they can perhaps assert that well, that’s evidence that she didn’t have mental capacity or that he was unduly influenced. So I think if your eyes are open to that, when you are doing that kind of a videotape, it might help in actually how it gets recorded. And, you know, those risks are some reasons why sometimes lawyers don’t recommend videotaping. But I think that it is, for the right kind of testator, it can be helpful.

Rick Bickhram: Good point, Natalia. Moving along in terms of other estate tools that can be used when managing or planning a person’s estate. One tool that is strongly recommended is known as the family meeting or the family conference. And in the family meeting or family conference, what it is really is, it’s an informal meeting where the testator here sits with her family, her children, mother and father if they’re alive, nephews and nieces if they’re included in the estate, depending on how close the family is, and what their plan is. It’s pretty much sitting down with your family and explaining to them what you’re going to do and why you’re going to do it. And Natalia, maybe you can shed more light on this because you’ve seen more cases than I certainly have. Why is this such a good tool?

Natalia Angelini: It’s a good tool because it’s really your only chance or the main way that you’re going to really speak directly to your beneficiaries, and to those that maybe you’re not intending to have as beneficiaries and really explain why it is that you have structured your estate in the way that you have. But I don’t want to confuse a family meeting with a family conference. A family conference is a formal meeting where you’ve got a third party chair; we do them at our office, for instance, and you’ve got potentially the accountant of the testator in attendance and the financial planner in attendance, and so it’s a much more structured event and I podcasted on that previously. Unfortunately I don’t have that episode off the top of my head, but if you’re interested in that, we certainly do have quite a detailed podcast on it.

So, what Rick was talking about which is a more informal family meeting, just with you and your family, you know, it’s got its risks because, of course, you can create real hostilities there.  But it can also potentially avoid litigation down the road because you’re all together and there are witnesses and people that can give favourable evidence to say well, mom wanted her estate this way. So that might avoid a Will challenge down the road.

So why don’t we go to another strategic tool that you can use to hopefully prevent litigation. And I think, I don’t think that this is used often enough, but I certainly do see it more and more. And that is inserting protective clauses in Wills.

Rick Bickhram: I’m going to guess but I think the protective clause pretty much protects the testator’s wishes and ensures that they’re pretty much flushed out or carried out.

Natalia Angelini: Well I think if it’s enforced, yes. And I think, you know, that leads me to my next point, which is that this type of clause isn’t valid in every jurisdiction and even if it is, it really ought to be drafted with precision so a Court will accept it. But essentially these types of clauses either say anyone challenging this Will will lose their interest in the estate or it will say that if anyone challenges the Will and that kind of clause can also read, if you challenge a Will and you’re unsuccessful in the challenge, then you lose your bequest. So there can be two different kinds of phrasing; I mean there can be several different kinds of phrasing but those are two that I’m aware of. So it really creates a disincentive to proceed with Will challenge litigation.

Rick Bickhram:  So it’s pretty much like an all or nothing scenario, correct?

Natalia Angelini: Exactly. And another way to do this more indirectly perhaps than having an actual protective clause is to give a gift directly to your grandchild.  so you can bypass your child that you’re not, that you don’t want to benefit from your will and you can give the gift to your grandchild, and that can really discourage your child from challenging the Will because they will essentially be at cross purposes with their own child. And really, by litigating and challenging the Will, they’re potentially diminishing their own child’s claim and who wants to do that?

Rick Bickhram: All really good points again. Good stuff, Natalia.

Natalia Angelini: Thank you, Rick.

Rick Bickhram:  The final point we would like to touch on today, the final tool that we would like to explain today is basically mental assessment. How does the mental assessment tool work? Should it be used and if so, how could it be used? What are your thoughts on that, Natalia? Natalia has more litigation experience than I do, so she could…

Natalia Angelini: Oh, don’t be so modest.

Rick Bickhram: She could provide more background here in that regard. My guess is, if an assessment occurs, just around the same time as when the Will is signed, and it is a favourable report, it could be beneficial to someone who is defending a claim against the estate that mom or dad lacked the testamentary capacity to execute the Will. What do you think about that?

Natalia Angelini: I think that’s absolutely the case. I mean, it certainly can be just one of the tools in your arsenal. If you know or you suspect that a Will challenge is going to come down the pipeline, then it’s a great idea, especially if you know that testamentary capacity is going to be an issue.  It’s a great idea to have yourself professionally assessed. There are other ways to do it; you can go to your family doctor that you’ve known for 40 years and have them write a supportive letter and/or you can get professionally assessed.

Rick Bickhram: What do you think, Natalia, about let’s say for instance, I’m going to execute my Will and I go see my family doctor. My family doctor has known me for a few years obviously, he’s my family doctor. I go to him, I explain to him I’m about to execute a Will and I would like for him to write me a letter, pretty much explaining his observation as to my mental capacity. Do you think that that letter would be given much weight presuming, after my demise, there is an estate battle between the beneficiaries of my estate?

Natalia Angelini: Well, I mean, I think that’s going to depend on the particular facts of the case and what all the other medical evidence is, but it certainly can’t hurt.  And if your family doctor has known you for many years and had the time and opportunity to really observe you, and their evidence really brings that out in trial, then that letter, coupled with their evidence, could be quite helpful, particularly if it’s done close to the time of signing the Will and I think that’s important, especially when you go the other route and you get a mental capacity assessment done. And that is likely, and again depending on the specific facts, an even more useful tool because someone who is hopefully, a professionally recognized capacity assessor and they are looking specifically to determine whether you have the mental capacity to not only manage your finances but also to make a Will.

Rick Bickhram: Well, Natalia, I think that brings us to the end of this week’s discussion.

Natalia Angelini: That’s right and I wanted to say it was great podcasting with you, Rick. We got some of our ideas from a great book written by Jordan Atin, Barry Fish and Les Kotzer, called “The Family War - Winning the Inheritance Battle. It’s a great book and it does cover a bunch of areas and this was one of them, so definitely an interesting read. And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. 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 you enjoyed the show. I’m Natalia Angelini.

Rick Bickhram: And I’m Rick Bickhram, 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.

When Miller died in February 2005, very few people knew of Daniel’s existence. Only one obituary notice mentioned Daniel and Miller’s own memoirs include no mention of Daniel.

Six weeks before his death, Miller made Daniel a full and direct heir equal to his other three children. While Daniel is not mentioned in the Will directly; separate trust documents, created the same day and sealed from public view, make Daniel an equal heir to Miller’s estate.

The article speculates that this was likely done contrary to legal advice as Miller’s bequest makes Daniel too wealthy to receive government assistance and a special trust was not created that would allow Daniel to inherit from the estate and continue to receive government assistance. In fact, Connecticut’s Department of Administrative Services issued a reimbursement claim to the estate for Daniel’s care since infancy and the estate is settling the claim.

Miller’s relationship with Daniel was complex and only Miller would be able to answer as to why he decided to make Daniel, who he did not publically acknowledge during his lifetime,an equal heir to his estate.

Until tomorrow,

Diane Vieira

Heath Ledger's father Kim has stated that little Matilda "will be taken care of".  However, Kim himself has been in litigation with his brothers, who accused him in 1994 of mishandling their grandfather's estate to the extent of $2 million.

This intriguing story also illustrates the importance and difficulty of valuing an estate.  News reports contain estimates from $2.5 million to $20 million, quite a range for an estate that spans at least two countries. 

No word yet on whether litigation will be launched on little Matilda's behalf against her exclusion from her father's estate.  Of course, other Wills may emerge...

Stay tuned.

Chris Graham

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion about tax plan wills and issues surrounding multiple wills.

Posted on October 9^th, 2007 by Hull & Hull LLP

Suzana Popovic-Montag:  Hi, and welcome to Hull on Estate and Succession Planning.  You’re listening to Episode #81 of our podcast on Tuesday, October 9^th, 2007.

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by

Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada.  Here are Ian and Suzana.

Ian Hull:  Hi Suzana.

Suzana Popovic-Montag:  Hi there Ian, how are you today?

Ian Hull:  I’m just great, thank you.

Suzana Popovic-Montag:  That’s good.  I apologize for my raspy voice.  I’m coming down with a little bit of a cold and after listening to your last podcast solo, I’m quite afraid of losing my job here.  So I thought, bad voice or not, I got to show up today.

Ian Hull:  No, we couldn’t do it as a solo event, because it’s a lot more fun to do it as a team, notwithstanding your ill health.

Suzana Popovic-Montag:  Well, I think you did a great job, Ian.  And you introduced our new topic and that was just great to be able to move on to something different now.

Ian Hull:  Thanks so much.  Well, I didn’t enjoy it because it’s not the same without being able to have a little banter back and forth.  And it reminds us, we just, well this podcast will launch into the system, we’ll have just finished our Breakfast series that we conduct.  We do a Breakfast series three times a year, the firm Hull & Hull does it.  And speaking about banter back and forth, it was a good session, some really worthwhile topics were covered.  We actually touched on some of the issues that I spoke about at the podcast last week, so that was kind of fun in terms of getting other perspectives.  But I implore you, if you’re interested, or encourage you…implore is probably too strong a word…encourage you to look at the web page, because what we typically do is we webcast these as well.  So you can get a look at it currently, if you want.  But we also eventually, once we get ourselves organized, we’ll put the video of what we did last Friday on the web, so you can feel free to look and listen as you see fit.

Suzana Popovic-Montag:  And our website, just for those who are interested, is

www.hullandhull.com.

Ian Hull:  Terrific.  Well, let’s stay focused on what we’re trying to do is, you know, I mean, as I said in my last podcast, we’re talking about some of the concepts that Lindsay Histrop so eloquently presented to us at a conference we were recently at.  And we’re trying to sort of expand on some of those because we have a little more time than Lindsay did.  And I tried to…the sense that I got from Lindsay’s talk was sort of there are ways to tax plan a Will, that we can’t forget that part of it.  And we’ve spent a lot of time talking about the other half.  And we’re now coming back to what is the grounded part of it, the more sort of the meat-and-potatoes part of Will planning. 

And so why don’t we continue on with that approach.

Suzana Popovic-Montag:  Okay Ian, and just to sort of recap, I think we basically saw three points to the idea of a tax planned Will in terms of objectives.  And the first being, of course, the, you know, the one that traditionally everyone uses as an excuse to plan a Will, and that is the avoidance of probate taxes, which here in Ontario is called the Ontario Estate Administration Tax.  And it’s approximately 1.5% of the asset value that you have passing under probate.

Ian Hull:  And in the second part of what we obviously need to turn to when we’re talking about planning Wills and estate planning and considering the overlay of the tax issues in terms of the concepts, is really just talking about avoidance and deferral and what we can do in that regard, talking about a little bit of the capital gains taxes, and so forth.

Suzana Popovic-Montag: And then in terms of the third objective there is, of course, you know, avoiding US estate tax on US property and planning for a US citizen as well.

Ian Hull:  Alright, so coming back to the last topic.  I finished off talking about some joint ownership issues again with the concepts of the tax implications.  But let’s talk about what is certainly in most jurisdictions now a fairly fundamental estate planning step that is tax driven.

Suzana Popovic-Montag:  And that, I guess you’re referring to, Ian, is the use of separate Wills, so more than one Will to plan for someone’s estate.

Ian Hull:  Absolutely.  And in Ontario, we sort of got this introduced to us by legislation.  It was back, I guess, some years ago now, the Granovsky decision that opened the door up to what we call, here in Ontario, multiple Wills.  And it’s a common estate planning phenomenon.  And it’s even used in some respects in the US for certain trusts planning issues.  But the concept is is that you create more than one Will.  And it seems intuitively at the outset something that isn’t natural.  And we think, well wait a minute, how can you have more than one Will?  There’s the traditional approach before Granovsky and before we got into this was that many people who had US assets did a separate Will for the US assets.  We’re going to talk about that in some future podcasts when we deal with the US issues. 

But this is very different.  This is using in your current location, your jurisdiction where you live and where you typically own most of your assets, this is using an estate planning technique that is fundamentally tax driven, that allows us to create more than one Will.

Suzana Popovic-Montag:  And the idea really is to have each Will deal with separate assets.  So it’s not like you’re speaking about one form of asset in two different Wills.  It’s just dividing your assets into two different Wills so that one Will is traditionally one that you would probate, so you would seek Court approval of that Will, pay the requisite estate administration tax or whatever probate fees are associated with it, and then you could administer that portion of your estate.  The other portion would be dealt with in a separate Will that doesn’t need probate.  And so you can still provide for how you’d like your assets to be distributed, but you don’t have to pay tax on those assets and you don’t have to seek probate of that Will.

Ian Hull:  That’s right.  And it’s the probate tax on the assets of the separated Will that can be so fundamental in terms of the tax avoidance.  And it’s entirely legitimate tax avoidance.  But, so Suzana, let me understand.  We’ve got sort of the traditional Will that we’re going to put some assets in and then we’ll call the secondary Will the Will where we’re going to put other assets in.  What are the assets we’ll want to put in to the traditional primary Will, so to speak?

Suzana Popovic-Montag:  Well they are usually Ian, the assets that the authorities who are holding, or have some form of control over those assets, need proof of the fact that the individual who wants to bring them or liquidate them or bring them into the estate has authority to deal with those assets.  So, for instance, we know that, you know, large bank accounts, typically the banks will not just pay over money when you show them a Will that names you as an executor.  They want Court approval or Court proof of the fact that that is the Last Will and Testament, so that you are the person with authority to liquidate that investment.  And then they’ll pay that money over.  And it’s because of the fact that there are certain assets that do require some form of proof, or they require that Certificate that we have to actually obtain probate of those assets.  Other assets, which can…

Ian Hull:  Sorry, before we go to the other assets, I just want to make sure I understand though.  Because, so in this primary Will, we’ve got, like you say, this investment assets and so forth.  And when you say the Court proof, I guess we’re talking about we’ll get probate and that means either the common form, which is just the over-the-counter probate with the proper application or the more complex solemn form, which is a Court sort of generated process, which we don’t really need to worry about the difference there, just that it’s probate.

Suzana Popovic-Montag:  Absolutely.  And the point there really is, Ian, you don’t need to do this for every asset.  And a Will speaks from death.  In a Will, if it appoints an executor, it does really vest that individual with authority to act.  But sometimes people will need that one extra step, like you said, proof in common form, proof in solemn form, to actually prove that that individual has authority.

Ian Hull:  Okay, and then like you say, it’s these third party entities like the banks that say, you know what, we’re not going to just trust that piece of paper, we want you to get it sort of stamped by the Court that that is indeed the Last Will of the deceased that generates it.  Now, so we’ve got, let me just think through this.  So we’ve got the banks obviously who will typically, and my experience is, anything over $5,000 they’re going to want it.  The investment companies are going to want it as well.  And in many jurisdictions, real estate as well.

Suzana Popovic-Montag:  That’s right, yeah, because and you can sort of understand that it’s one of the biggest assets normally in someone’s estate and the individuals who are purchasing that from the estate trustee want to make sure that that individual does have the authority to deal with that asset.  And, of course, they do but, you know, it’s that little extra comfort of a Court stamp or a Court stamp of approval on it.

Ian Hull:  So these third parties then don’t get sued for sending out assets to the wrong person.

Suzana Popovic-Montag:  That’s right.

Ian Hull:  Alright.  So those are sort of the main assets that would be, I’m sure there are other assets, but for the time being, let’s sort of move now to this secondary Will.  And why would we have a secondary Will, what kind of assets would go into that?

Suzana Popovic-Montag:  Well, traditionally we see people put private company shares in that separate Will.  And the reason for that is because that again is normally one of the larger aspects of an estate in terms of the value.  And so to be able to avoid probate fees on such a valuable investment or company share worth, it is a really good way to sort of deal with that asset.

Ian Hull:  So we have these private companies and when you say private companies, of course, we’re talking about a situation where someone might have an investment portfolio that they put in a Holdco.  They separate it from themselves and put it into a company for, you know, creditor protection, for other tax reasons.  So, say there is a portfolio of $1,000,000 and you’re running it through a local investment dealer and it’s in Holdco, Xco is holding the assets.  Then those assets would, in the old days, normally fall into the primary Will and they would be subject to probate tax.  Now, we are able to, what you’re saying is we’re able to separate it.  And we put the Holdco assets and we refer to it specifically in the secondary Will and it’s important, not that we want to get into the drafting that it’s important how we describe the preambles on the two Wills and so on, there’s some technical issues.  But what you’re saying is is that we can put those in that secondary Will and then literally transfer those assets to the beneficiaries under that Will without probate and all you have to do is create the necessary internal documents through the director’s resolutions and so forth, to pass the ownership over.  And typically the directors are all closely related or know each other and so there’s a comfort there.  The directors know that indeed that is the Last Will and we’re not dealing with some mystery Will here.  So they don’t need that extra Court stamp.

Suzana Popovic-Montag:  That’s right Ian, absolutely.  And the key really is that it’s private company shares.  So if you hold stocks of, you know, a publicly traded company, of course that’s something that’s going to go back into the primary Will.  So it’s just important to keep that in mind.  And I’ve seen certainly, in addition to just those private company shares, people also will put, you know, their art or their antiques or other personalty in this secondary Will as well.

Ian Hull:  And so, just so it will be clear though, in Holdco, say we’ve got Holdco created.  You can actually pass the shares, the 100 shares of Holdco to your kids, for example.  Now that Holdco can hold private company and public company shares. 

Suzana Popovic-Montag:  Absolutely.

Ian Hull:  You could have, you know, Bell Canada in Holdco.  And it’s a great way again because Bell Canada doesn’t care.  All they care is is that Holdco still owns the shares and so there’s not the need for that extra layer of probate fees.

Suzana Popovic-Montag:  That’s right Ian.

Ian Hull:  Alright, terrific.  So I think that covers us off on that issue.  And it’s an important issue.  Not necessarily one that comes to mind in every case but if you’ve got a situation where you’ve got sufficient assets to consider it, that secondary Will is important from a tax avoidance standpoint.

Suzana Popovic-Montag:  That’s for sure.  Well thank you very much Ian, I look forward to our next podcast.

Ian Hull:  Thanks Suzana.

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

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

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

/mem