ARE YOU A BARRACUDA?

Jun 7, 2024

From time to time, when meeting with a potential client, I get a question along these lines:  “Are you aggressive?  I need a lawyer that is going to be a barracuda.”

Do they though?  Some clients think what they need is a lawyer who is going to write nasty five-page letters punctuated with threats and sarcasm, ending with “Govern yourself accordingly”.  However, a nasty letter writing campaign between two blow hard lawyers doesn’t accomplish much other than to add to their clients’ legal bills.

When I first became a lawyer, I thought I would have to change my personality to earn respect as a litigator.  When acquaintances learn that I am a courtroom lawyer, they often respond with something like, “But you are so nice!”  Erin Cowling’s blog post about being a litigator who hated conflict really spoke to me, as I too used to wonder if I was too sensitive for legal warfare.

With time, I have come to believe that an excellent advocate acts strategically, not aggressively.  Being strategic means creating a litigation map to get what your client needs.  It means thinking through what your opponent is likely to argue and what a judge is likely going to need from you.  It means breaking down cross-examination questions, editing them and re-ordering them until you have the right questions in the right sequence. Great advocates don’t yell the loudest.  They take the raw materials of their client’s story and mold it into a compelling narrative.

Some of the best advocates I have encountered are likeable, cooperative, and kind. Good listening skills, sensitivity, and empathy can be superpowers in law.  Detecting small word choices in a witness leads to better follow up questions.  Sensing a judge’s reaction to your legal argument helps you make adjustments on the fly.   Empathy builds trust when I am working as a mediator, and trust helps pave the way to settlement.

My advice to law students thinking of a career as a litigator?  Don’t worry if no one has ever compared you to a “ferocious, opportunistic predator” (as Wikipedia describes a barracuda).  Bring your unique gifts to the counsel table.

 

Angela Casey

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

DIY WILLS: THE GOOD, THE BAD AND THE UGLY

Jun 4, 2024

In the realm of estate planning, the importance of having a will cannot be overstated. A will ensures that your wishes are carried out after your passing, providing clarity and direction to your loved ones during a difficult time. However, the process of creating a will can often seem daunting, leading many individuals to turn to will kits as a cheap, accessible, and quick solution. Will kits are documents that can be purchased online or in-store, which walk the user through the process of writing a will (often, this is done in a fill-in-the-blanks type format). But as with any DIY approach, there are both benefits and drawbacks worth considering when relying on a will kit for your estate planning needs.

 

The Good

There are several reasons why someone may choose to rely on a will kit.

  1. Cheap(er): Hiring a lawyer to draft a will incurs costs. In comparison, a will kit can be found online or in-store for a fraction of the price, leading many to believe that a using a will kit is the more cost-effective choice.
  2. Accessible: Since will kits can be found online and printed at home, they offer a way for people to write a will from the comfort of their own home. This consideration becomes especially important for those having trouble with mobility.
  3. Quick: People with busy schedules or urgent needs to create a will may opt for a will kit due to time constraints. They might see it as a quicker way to get their affairs in order without having to schedule appointments with a lawyer.

 

The Bad

The bad news is that will kits are not as great as they seem.

  1. A one-size-fits all approach: A major drawback of using a will kit is the lack of customization. Every individual and family situation is unique, and a one-size-fits-all approach may not adequately address specific needs or circumstances. Without personalized legal advice, important considerations or opportunities for tax optimization may be overlooked.
  2. Error-prone: DIY wills are more susceptible to errors and ambiguities, which can lead to legal challenges or disputes among beneficiaries after the testator’s death. These errors are highly likely because will kits do not offer the legal guidance necessary to navigate complex issues such as estate taxes, trusts, or guardianship arrangements. Without professional advice, individuals may inadvertently make decisions that have unintended consequences for those around them.

 

…and the Ugly

Mistakes in wording or failure to comply with legal formalities prescribed by Ontario’s laws can make the will difficult to interpret or render it invalid.

  1. Your will kit could lead to litigation: Ontario’s laws governing wills and estates are precise and may require specific formalities to ensure the validity of a will. DIY will kits may not adequately educate individuals on these legal requirements, leading to the inadvertent omission of crucial elements or failure to comply with formalities such as witness signatures. A will that does not meet the legal requirements could be challenged in court, potentially leading to litigation to determine its validity. In addition, inadequately drafted wills have the potential to create tension among family members, especially if beneficiaries feel unfairly treated or if the testator’s intentions are unclear. This can strain relationships and lead to costly and emotionally draining litigation to resolve disputes.
  2. Your will kit could be invalidated: Ontario’s laws regarding wills and estates are intricate and subject to change. Using a will kit without proper legal oversight increases the risk of creating a document that does not comply with current legal requirements. For example, a missing signature or a partially typed will may be deemed invalid. Even seemingly minor discrepancies or omissions can result in the will being declared invalid by the courts.

 

Takeaway:

When drafting a will, whether through a will kit or a lawyer, it is vital to return to your core goals and values. Do you want to ensure that your assets are distributed in a specific manner? Is your goal to provide for loved ones, or safeguard against unwanted outcomes and beneficiaries?

While a will kit may offer a quick and accessible solution, it may not provide the level of customization and expertise necessary to address your individual needs. In addition, while a will kit may be the cheaper option outright, you may be signing your loved ones up for spending thousands of dollars in legal fees later down the road (even if the matter is resolved amicably).

 

Ultimately, estate planning is about more than just filling in blanks or checking off boxes—it is about crafting a document that reflects your values, priorities, and desires for the future. After all, the decisions you make today will shape the future for you and your loved ones tomorrow.

 

Diana Begaliyeva

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

 

CASEY & MOSS WELCOMES OUR SUMMER STUDENTS

May 22, 2024

Casey & Moss is thrilled to welcome our 2024 summer students, Diana Begaliyeva and Fara Seddigh, to our team. Read on to get to know Diana and Fara!

Diana Begaliyeva

Diana is an incoming 3L at Queen’s University Faculty of Law. Prior to law school, Diana specialized in Criminology and Socio-Legal Studies at the University of Toronto. Diana discovered her passion for advocacy and access to justice while at UofT, where she founded the Legal Literacy Club. During her time as Director, Diana organized events educating the community on landlord/tenant rights, immigration, and wrongful convictions.

Prior to joining Casey & Moss, Diana strengthened her advocacy skills through her work at the Community Legal Clinic of York Region. Diana worked primarily on the disability law team and advocated for her clients at several appeals before the Social Benefits Tribunal.

While in law school, Diana researched the intersection of feminist constitutionalism and recent equality jurisprudence alongside an exceptional research team. Currently, Diana is spending her free time at the Institute of Intergovernmental Relations, where she is researching the ways in which shell companies and NFTs are used to facilitate white-collar crime and human trafficking.

When Diana is not working, she spends her time walking down Lakeshore, playing tennis, and standing in line at Badiali’s.

Diana is eager to explore her keen interest in Wills and Estates, and continue developing her oral and written advocacy skills while working at Casey & Moss this summer.

Diana can be reached at dbegaliyeva [at] caseyandmoss [dot] com.

 

Fara Seddigh

Fara is an incoming 3L at the Lincoln Alexander School of Law, with a Double Major in Psychology and Law & Society from York University. Prior to and throughout law school, Fara assumed several roles within the field of politics, having most recently worked as a Legislative Assistant to a Member of Parliament. While moving back and forth between Richmond Hill and Parliament Hill to stay engaged in both local and national issues, Fara solidified her passion for advocacy, community engagement, and utilizing the law and policies as tools for social change.

In her 1L and 2L years, Fara further strengthened her experiences in advocacy through volunteering with Pro Bono Students Canada at two legal clinics, where she delved into a diverse array of matters focused on Housing Law, Administrative Law, Immigration Law, and more. As the Submissions Manager of her law school’s debut law journal, the TMU Law Review, Fara worked alongside a fantastic team to advance publication of the inaugural edition and upcoming second volume.

Fara is excited to build on her advocacy skills at Casey & Moss, where she will explore her emerging interests in the area of Wills and Estates while gaining valuable mentorship and exposure to the nuances of litigation.

In her free time, aside from drinking an unusual amount of coffees per day, Fara enjoys watching and talking F1, trying to snatch up concert tickets, and looking for new places to travel!

Fara can be reached at fseddigh [at] caseyandmoss [dot] com.

CONSIDERATIONS IN MOVING FORWARD WITH A WILL CHALLENGE

May 6, 2024

In my experience, it’s quite common to have a call with a potential client that involves the following situation:

  • The potential client has concerns about their relative’s last will and testament. The relative’s Will was changed shortly before the relative’s death, reducing the potential client’s share of the estate, or removing the potential client from the Will entirely.
  • The relative exhibited memory issues and confusion in the years leading up to their death. The relative may have also shown signs of paranoia or behaved in previously uncharacteristic ways.

In some cases, the facts provided by the client strongly suggest that the relative was unlikely to have had the capacity to make the disputed Will. However, most situations do not fit into this category and there are often many gaps in the potential client’s knowledge.  This is often because some key information and documentation is not available to review.  For instance, documents such as medical records and the file of the lawyer who prepared the Will are not normally going to be available until a court Order is obtained for their release. But one cannot obtain such an Order without first starting a court application to challenge the Will.

Once the Order for production of documents is obtained and the medical, legal, financial, and other documents are reviewed, the case may look quite different than it initially appeared.  It may be a better or worse case than the lawyer initially might have thought given the very limited information that was first available. For this reason, it is very important to re-assess the strength of a Will challenge case at each step of the litigation process.

On a related point, a client should not wait too long to challenge the validity of a Will. The estate trustee named will be busy administering the Estate and will eventually distribute the assets if they aren’t prevented from doing so through a court Order which ties up the administration. This type of Order is typically granted when a Will is challenged. As well, it is extremely important that a limitation period not be missed, as a limitation period could have the effect of blocking a Will challenge from proceeding. (Legal advice will be required to determine when the limitation period begins to run as the particulars of each situation must be considered.) But, generally speaking, while some things may age well, a Will challenge case is not one of them and it’s generally best to commence a claim as soon as possible.

 

Angelique Moss

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

WHERE THERE IS A FOREIGN WILL, THERE IS A WAY

Apr 26, 2024

In my previous blog about probate, we discussed what “probate” or a “Certificate of Appointment of Estate Trustee” is, and the different residency and security requirements for probate in Ontario, depending on whether the deceased person had a Will. Sometimes, clients will come to us having already obtained probate or been appointed as estate trustee in a jurisdiction outside of Ontario, then discovering that the deceased owned a bank or investment account in Ontario and needing Ontario probate to get that asset liquidated. In today’s global landscape, we are encountering these situations with increasing frequency.

Where the deceased did not have an Ontario Will, the Estates Act provides that estate trustees can apply for a “Resealing of Appointment of Estate Trustee” or an “Ancillary Appointment of Estate Trustee” in Ontario. Resealings and ancillary appointments have the same effect of recognizing the foreign grant of probate in Ontario as if it were originally granted by the Ontario Superior Court of Justice. In other words, a resealing or ancillary appointment will provide the estate trustee with authority to act on behalf of the estate in Ontario and administer the Ontario assets. The difference between the two is where the original grant of probate was obtained.

Where the applicant was appointed as estate trustee by a court (a) outside of Ontario but within Canada, or (b) outside of Canada but in a Commonwealth country, they should seek a Resealing of Appointment of Estate Trustee. The applicant does not have to be an Ontario resident, and their foreign estate trustee appointment could have been made with or without a Will. A bond is required unless the original grant of probate was made with a Will and the applicant is a resident of Canada or elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.

If the applicant was appointed as estate trustee by a court that is not part of the Commonwealth, they should seek an Ancillary Appointment of Estate Trustee. The applicant does not have to be a resident of Ontario. A bond is required unless the applicant is a resident of Canada or the elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.

If you find yourself unsure about what kind of probate to apply for or which forms to submit, feel free to reach out to our team and schedule a consultation with us.

 

Zara Wong 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.