Sep 12, 2024
Typically, the expectation when someone dies with a Will is that the beneficiaries named in the Will inherit the estate. Similarly, if someone dies without a Will, it seems reasonable to assume that the estate will be distributed to the beneficiaries established under the rules of intestacy in the Succession Law Reform Act.
While this is all true, there may be a person (or even more than one person) not named in the Will, or who isn’t a beneficiary according to the rules of intestacy, but who is still entitled to funds from the estate, if that person is considered a dependant of the deceased. These dependants may make a claim against the estate for funds, even if they aren’t estate beneficiaries.
When a dependant claims support from an estate, this may mean that beneficiaries end up inheriting a smaller portion of the estate than they otherwise would. It also means that assets that typically pass outside the estate, like an insurance policy, a registered account like an RRSP, or even a jointly owned property, may be considered part of the estate for the purpose of the dependant support claim. This is the case even if these assets have already been distributed to the beneficiaries.
But who qualifies for dependant support from the estate? There is a two-part test set out in the Succession Law Reform Act that helps answer this question. First, the person claiming support must be a dependant of the deceased, meaning they were either a spouse, parent, child, or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide, support. Note that “spouse” includes a common-law spouse who was never married to the deceased.
If the person fits within the definition of “dependant”, the next part of the test is to determine whether the deceased made adequate provisions for proper support of that dependant. For example, is that dependant already a beneficiary of the estate receiving proper support? Or is that dependant a beneficiary of the deceased’s life insurance policy and already receiving proper support that way? If not, the dependant may be able to bring a court application for support from the estate.
Lawyers can advise potential dependants, as well as estate trustees, on whether there is a potential dependant support claim, when that claim must be brought, and how it may impact the distribution of the estate.
Cara Zacks
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.
Sep 12, 2024
As an intake clerk, you are the first point of contact for your firm.
The caller is a potential new client and immediately you know this is an important call and how you handle this caller will determine whether the firm will be retained. Someone needs your help.
Some callers are precise and know what they want. If it is not within your firm’s scope of work, you immediately advise them this is not within your area of law and if possible, give the caller the names of two other law firms you think may be able to help them. Most callers are thankful when you can recommend another law firm based on their matter.
Then you have the callers who have done their research and checked your website so when they call, they already know your area of practice and can state clearly what they need help with. This makes it much easier for the intake clerk as this caller is prepared and can readily give you the information you need.
Often, callers have just lost loved ones. They are usually grieving and unsure about how to proceed with the next step for their individual matter. The added issues with beneficiaries and the value of the estate can be stressful.
This is where your skills come in as an intake clerk. You should be patient, compassionate and alert as it may take 10-20 minutes to obtain the key facts and details of the caller’s story.
In this case you should:
a) Listen to their tone of voice. It speaks volumes. With time and experience you will sense/feel the person’s pain and fear. This is your moment to calm them by saying “I realize this is a very difficult moment in your life but we are here to help you”.
b) Ask them exactly what they need help with and give them time to explain themselves. Knowing someone is listening can help someone relax and feel comfortable. During this time, you will be able to jot down salient points (asking pertinent questions in between) and by the time they are through, you will have the information you need. That is:
- The caller’s name, phone number and email address
- The deceased’s name and date of death
- Whether there is a Will and the date of the Will
- Any Powers of Attorney and the dates
- The value of the estate
- Names of trustees and beneficiaries
- Any disputes pertaining to the estate and main concerns
- Any upcoming court dates
It is important to get as much information as possible for the lawyer who will be giving the initial consultation and remember to do conflict checks on all the names involved.
A conflict check is simply an internal check in the firm’s database to ensure we have not consulted with or we are not already representing any of the parties involved in the matter which would lead to a conflict of interest.
c) At all times during the call, make the caller feel like a person and show them that you really care about their well-being. This sometimes leads to a conversation far removed from the estate issue at hand but again, your intake job goes beyond just taking information. It is always a pleasure meeting people and knowing you can make them happier just showing that you care.
Overall, whether it is a request for help with a certificate of appointment of estate trustee, an application for guardianship, passing of accounts or mediation, remember someone needs your help and knowing your firm can provide that service is very comforting.
At the end of the conversation, the potential new client should leave feeling relieved and assured that your firm can act on their behalf and get the work done.
Roslyn Blackette
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.
Jul 26, 2024
Accepting my offer at Casey & Moss was an exciting moment for me. However, as my start date approached, my nerves set in – what will my 2L summer look like? Reflecting on this summer, I can confidently say it has been one of the most rewarding experiences of my law school career.
To give prospective students an idea of what it’s like to work at Casey & Moss, I decided to share my experience working here this summer.
You dive right into the (interdisciplinary) world of estate litigation
Estate litigation combines elements of family law, real estate, tax, civil litigation, disability and at times, even criminal law. During my summer, I had the opportunity to engage with complex legal issues, such as disputes over wills, guardianship matters, and fiduciary obligations. Each case presented a new challenge, requiring meticulous attention to detail and a deep understanding of the legal principles governing estate law. I often found myself reviewing notes from not only wills and trusts courses, but also tax and civil procedure, and I quickly became familiar with family and real estate law.
Hands-on learning and mentorship
One of the highlights of my summer was the hands-on experience I gained through working closely with the Casey & Moss team. From day one, I was entrusted with substantive tasks that allowed me to develop my legal skills. Whether it was drafting pleadings, conducting legal research, or assisting in client meetings, I always felt like a valued member of the team.
The mentorship at the firm has been invaluable. Whether it was a lawyer on file or a partner, everyone was always willing to share their knowledge and offer guidance. Their feedback on my work helped me refine my legal writing and analytical skills, and their open-door policy ensured that I never felt hesitant to ask questions or seek advice.
Courtroom exposure and advocacy
This summer, I attended several hearings, both on Zoom and in person, at various courts (including the Ontario Court of Appeal!). I saw the real-world application of concepts I had studied and researched, and I gained a practical understanding of litigation strategies and procedural nuances.
I also had the privilege of observing several mediations. Observing mediations offered a firsthand look at the art of negotiation and the delicate balance between advocating for a client’s interests and finding common ground with opposing parties. This experience underscored the importance of patience, empathy, and creativity in resolving disputes outside the courtroom, providing me with a deeper understanding of how effective mediation can lead to satisfactory outcomes for all involved.
A collaborative firm culture
Casey & Moss truly has a fantastic firm culture. The firm holds numerous team meetings every month, where everyone can share their ideas, express concerns, and collaboratively discuss legal strategies. This collaborative approach not only enhanced my learning experience but also demonstrated the importance of a supportive work culture in achieving successful outcomes for clients.
Conclusion
As I return to law school for my final year, I carry with me the lessons learned and the confidence gained while working at Casey & Moss. My time here has been nothing short of transformative. Big thanks to everyone at Casey & Moss who has made my summer such a rewarding experience.
Finally, if you are a current law student who is interested in chatting more about my experience at Casey & Moss, do not hesitate to reach out!
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.
Jul 2, 2024
The Denial
I still remember the day my mom got diagnosed with cancer. It was a beautiful summer morning, the sun was out and shining, but there was nothing joyful about the day ahead. As I watched the doctor give my mom the news, I began thinking a million different thoughts, but as you can imagine, not one of them was related to what would happen to my mom’s assets if she were to die.
The doctor walked my mom through the treatment options, but she also quickly glossed through (what I found to be) an unusual item on her agenda: asking whether my mom had a will. I recall finding this question incredibly strange, especially coming from a doctor, and my family and I felt rather upset that a will was even being brought up.
In hindsight, I recognize that a will was a necessary thing to bring up at the time, especially while my mom was still capable and in better health.
But at that point in my life, I was a young naive undergraduate student with zero knowledge about wills, other than the fact that I always associated them with the one thing I did not wish for my mom: death.
Writing a will, to me, was seen as a confirmation of what’s to come, and we did not want to spend any time planning for her death if we could be spending it with her instead.
So, I put off the topic of thinking about her will for as long as possible. My family did the same. With every moment we had kept denying and waiting, my mom lost more and more of her capacity and the ability to express her wishes or to make a valid will.
The Harsh Reality
Eventually, the day we feared came, and my mom passed away intestate (without a will).
While dealing with this great loss, I was also receiving calls asking for information such as who was overseeing my mom’s estate, whether she had a will, or who were the beneficiaries on her life insurance policies.
Everyone seemed to be asking for a bunch of documents, none of which I nor any member of my family knew how, where or when to obtain.
Finally, we realized that we can’t do this alone and require legal assistance.
Make A Will, even if You’re Not Willing
After talking to a few lawyers, I found out that all this confusion, fear, and anxiety could have been avoided if we were more proactive early on in getting my mom the resources she needed to sort out her affairs and express her wishes through a will.
Without her will, we were left in the dark about how to deal with or even access some of her assets and liabilities, and ultimately, we had no choice but to look into applying for probate (or a “Certificate of Appointment of Estate Trustee Without a Will”).
The main takeaway here is that there is a significant stigma around wills and estate planning, often seen as a morbid task rather than a responsible and caring act.
Overcoming this stigma is essential for ensuring that one’s wishes are honoured and that family members and friends are spared any unnecessary distress. Since working to overcome this stigma myself, I now understand that a will is not just something to think about when nearing death; it’s an important tool for planning out your wishes, and ensuring that your loved ones, nearest and dearest, are provided with the clarity and clear instructions that a will provides.
So, take it from an only child who was left dealing with the consequences of a deceased parent’s intestacy for months (and now years) after the loss: encourage your loved ones, or even yourself, to make a will when you are still able to do so, not because you are nearing death, but rather because you are protecting your wishes for when it comes.
Fara Seddigh
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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
