Feb 20, 2025
On February 6, 2025, Cara Zacks was a panelist at the Ontario Legal Conference hosted by the Ontario Bar Association. Cara Spoke on a panel with family law lawyer Kelly Jordan on the subject of Marital Contracts After Death. The Panel was moderated by family law lawyer Ibtisam Jemal.
Cara presented on issues related to the enforceability of a marriage contract after death. In particular, she discussed setting aside provisions in a marriage contract through which a spouse releases the right to claim dependent support under the Succession Law Reform Act or to elect equalization after the death of a spouse.
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.
Jan 6, 2025
One of my favourite parts of working as an estate litigator is that our files intersect with so many areas of law. Our clients come to us for our expertise and advice on estate and capacity law, but their complex legal problems often require answers outside our expertise.We work with our clients to find experts in areas of law like tax, employment, family, business, and real estate law, to provide a comprehensive answer to our clients’ legal problems.
Not surprisingly, family law regularly interacts with estate litigation. For example, a surviving spouse may elect to make an equalization payment claim under the Family Law Act rather than take what they are entitled to under their spouse’s will. A surviving spouse may choose to make an equalization claim and, at the same time, a dependant support claim under the Succession Law Reform Act.
Tax law often comes into play in estate litigation. When you die, your assets are deemed to have been disposed of, potentially triggering capital gains tax. When working on a piece of estate litigation, we often work with expert tax lawyers to help us assess the estate’s tax liabilities. When we help our clients negotiate a settlement, we consult with tax experts to help beneficiaries and estate trustees minimize tax liabilities.
Corporate law issues often arise in estate litigation, as well. Often, we act as or represent an estate trustee for estates that own businesses. When this is the case, we may consult a business lawyer to help us find the most practical way to transfer or sell the business or to determine its assets and liabilities.
Employment law is another area that regularly comes up in estate litigation if the deceased owned a business. In such cases, the estate trustee may have to worry about employment contracts as well as ongoing wrongful dismissal claims.
Finally, real estate law frequently intersects with estate litigation. Whether it’s a family home, cottage, or investment property, disputes often arise over ownership of the property, the property value, or whether an estate property should be sold (and for how much) or kept in the family.
Estate litigation does not happen in a vacuum. Although our clients may retain us to assist with a will challenge or a dependant support claim, for example, other areas of law are sure to pop up over the course of the litigation. It’s our job to find lawyers with the right expertise to work with so we can, together, provide helpful and tailored advice to reach a resolution as quickly and efficiently as possible.
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.
Nov 5, 2024
A good executor wants to respect the Deceased’s wishes. But when it comes to the choice of lawyer, the Deceased’s wishes shouldn’t carry the day. Many executors mistakenly think that the lawyer whom the Deceased hired to draft the Will should be the one to “probate” it (i.e., submit it to court along with an application for a Certificate of Appointment of Estate Trustee). And unfortunately, some lawyers seem to make the same assumption, and hold themselves out as effectively already hired for the job.
That assumption is especially common when the drafting lawyer has been storing the Will in the meantime, and the executor needs to contact them to get the original. Rather than releasing the Will, sometimes the lawyer starts discussing the content and timing of a probate application, as though they own the Will or have some right to be hired for the job of probating it. While this may be inadvertent, it leads to unfairness. The client does not realize they have a right to review retainer terms (including cost!) upfront and to say no if they don’t like those terms. Clients might pay more than they want or need to, or end up hiring a lawyer they aren’t comfortable with, because they did not understand they have a choice.
The executor can always demand the release of the original Will and take it to a lawyer of their choosing. The testator cannot enter into a future retainer agreement with a probate lawyer in advance of their death, or bind their executor to their choice of lawyer. And legally speaking, the Will is not the property by the lawyer who drafted it, even if that lawyer has agreed to store the Will. A Will is the property of the testator, which means that it becomes the property of the executor after the testator’s death.
The lawyer who drafted the Will has no special knowledge or expertise beyond any other lawyer who does probate. Sometimes, they have less, because probate and estate administration might make up only a very small portion of their practice. And if there is anything contentious involving the Will (for example, a beneficiary has concerns about its validity or is threatening a Will challenge) then the lawyer who drafted the Will should absolutely not be acting for the executor. They are a potential witness and in a conflict of interest. The executor should retain a new lawyer with no involvement in the Will drafting.
If you find yourself named as executor in a Will, know that you are free to choose your own lawyer. As with any other service, shop around. Find the price and the person you feel comfortable working with. While your deceased family member or friend may have chosen to hire that lawyer, you don’t have to.
As a further tip, be cautious if a lawyer tells you that you must pay a fee before they can release the Will to you, or that they are entitled to be paid for their time retrieving it. Ask to see the retainer agreement or other contract signed by the testator entitling the lawyer to be paid a fee for storage or retrieval.
Laura Cardiff
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.
Oct 31, 2024
I begin with a rant. Power of attorney litigation is the worst. I am not talking here about the kind of litigation where there is an actual financial predator who has obtained a power of attorney through fraud and stolen money from a vulnerable person. That is properly a matter for the courts and the kind of case I derive great satisfaction in pursuing.
I am talking about the kind of power of attorney dispute where the sole issue is whether Johnny or Jane should act as attorney for property and personal care for their parent.
The usual fact pattern begins after the first parent dies. In the aftermath of Dad’s death, the entire family realizes how much Dad’s involvement had been masking Mom’s dementia symptoms. It becomes immediately apparent that Mom is struggling on her own – burning things on the stove, losing her license after a minor car accident, missing appointments, and having trouble with word finding.
Jane is the Responsible One. Jane was always the straight-A student, the rule follower, and the one her parents leaned on most in their senior years. Jane has a Big Job and a busy life with all the typical Type A supermom activities. Naturally, when her parents did their estate and capacity planning 20 years ago while both were well, Jane was selected as the attorney for personal care and finances.
Johnny, by contrast, was not successful in any traditional sense. He doesn’t have regular work, went through an ugly divorce such that he has no full-time parenting responsibilities, and suffered from a substance use disorder from which he has recovered. He has no financial security and does not own a home. As mothers do, Mom adores Johnny. Jane and Johnny do not get along.
Johnny moves in with Mom, which works for both of them. Mom spent the last 40 years of her life making this house exactly the home she wanted. Each knick knack is precious to her. She loves having Johnny around. Jane, however, sees Johnny’s care as substandard. In her view, Mom is not getting bathed or showered enough, Mom is spending too much time watching TV and not enough time doing enriching word puzzles. Jane read about the optimal Alzheimer’s diet and laments the processed food Mom and Johnny seem to be relying on. Mom’s nails and hair, which had always been immaculate, are dirty and unkempt.
As the attorney for personal care and property, Jane decides it would be best for Mom to move to a state-of-the-art memory care facility. Mom is happy living in her home with Johnny and doesn’t want to go. Jane believes that Mom is just not capable of making that decision anymore and ignores Mom’s pleas. Desperate, Mom sees a lawyer (she has no license, so Johnny takes her there) and signs new powers of attorney naming Johnny as her new attorney for personal care and property.
Jane lawyers up. Her lawyer tells her that because the new power of attorney documents were prepared when mom had dementia, a Court could find them invalid and then she would go back to being in charge. Johnny also gets a lawyer. Eventually, a judge also appoints a section 3 lawyer for Mom.
From Mom’s perspective, things become a nightmare. She reads pages of deeply embarrassing affidavit content drafted by Jane’s lawyer, including anecdotal evidence about the time that she couldn’t make it to the bathroom on time and had an accident at church, another about the traumatizing time she got lost. The affidavit evidence contains photos to show how dirty her hair is, how long her toenails are, and the spoiled food in her fridge. She feels an overwhelming sense of shame and embarrassment. She feels like every visit from Jane over the last few months was a trick designed to capture embarrassing video and photo evidence for Jane’s court case against her. The next time Jane comes to visit, Mom tells Johnny not to let Jane in.
The legal fees in these types of cases are breathtaking because lawyers take over all communications between Johnny and Jane, who no longer speak. Every petty grievance or detail of Mom’s life is aired out through letter exchanges between lawyers charging hundreds of dollars per hour.
For the price Jane is paying her lawyers, she could have paid for Mom to have weekly manicures and pedicures, twice-weekly blow-outs, a meal delivery service, weekly visits to the spa, and an Alzheimer’s day program a couple of times a week. But instead, Jane is obsessed with proving that her brother is a deadbeat getting “free rent” by staying in Mom’s house with her. Jane wants to be back in charge, and she wants a judge to confirm that she is the Good Daughter and Johnny is a Very Bad Son. By the point that they get to mediation, both sides have incurred tens of thousands of dollars in legal fees.
The legal fees then become the impediment to resolving the legal dispute. I have mediated many of these cases where the parties are able to resolve all the important issues – where Mom will live, what type of caregiving supports she will have – but the sole remaining issue is each side’s belief that the other side should pay legal costs. Having settled, it would be difficult to get a judge to decide the costs issue independently because the judge doesn’t have context to award costs to one side or the other without delving into all the issues that are now settled. In many cases, the fight continues and more costs are incurred just because neither side will cave or compromise on costs. And in a sad number of cases, the parent dies while the litigation is still unresolved.
Estate and capacity litigators, we need to find better ways of dealing with these issues. In my experience as section 3 counsel for many “Moms” in these cases, not once has the parent said to me, “I am so glad Jane brought this court case to get me the care I need.” Universally, the parent caught in the middle of the dispute says, “I love both my children equally. I want them to get along and I want this litigation to end.” To them, the litigation feels “stupid” (a direct quote from a section 3 client), embarrassing, damaging and incredibly stressful. In my next series of blogs, I am going to share some ideas about how we might change our approach to these kinds of disputes.
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.
Oct 2, 2024
I was fortunate to participate in my first trial at the Superior Court of Justice just a couple of weeks ago. It was an eye-opening experience that challenged me and taught me many invaluable lessons. Here are four key takeaways and observations from those two weeks:
You Can Never Be Over-Prepared
It goes without saying that the cornerstone of success in any trial is preparation, preparation, and more preparation. There is a ton of work in the lead-up to a trial, and not enough hours in the day to juggle trial prep and your other files. It is essential to plan out your trial prep weeks in advance, ensuring that you can meet both your other professional and personal obligations. Start as early as possible.
Do you have expert witnesses? Schedule several preparation sessions with them as soon as you can. Remember that your expert witnesses have other professional commitments so it is crucial to allocate ample time with them to discuss their expert report, practice your examination questions, and refine those questions with their input.
Your client, if testifying, will need thorough preparation as well. Conduct practice cross-examination sessions with them to anticipate challenging questions that they may be asked by opposing counsel. It’s not uncommon for clients to be caught off-guard by how easily gaps are identified in their testimony. A key aspect of preparing your client is foreseeing the weaknesses in your case and considering what opposing counsel may target during cross-examination.
Lastly, read and re-read all pleadings, documents, reports, and transcripts. You never know what details you might catch on subsequent review that will be helpful, even incrementally, to your case.
Learn by Observing and Collaborating
I was lucky to work with counsel whose clients’ interests were aligned with my client’s in this trial. Working as a team allowed us to divide up tasks and responsibilities, which made trial preparation not only more manageable but also more insightful and effective. We brainstormed and ran ideas by each other, had multiple perspectives and fresh sets of eyes in drafting pleadings and other written material, and leveraged each other’s strengths.
As this was my first trial, collaborating with experienced trial lawyers was invaluable. I was not shy about calling or emailing them when I had questions, and they were gracious about sharing their knowledge and tips with me. Their guidance taught me a lot about the nuances of trial and courtroom procedure.
Additionally, I gained a wealth of knowledge by observing both aligned and opposing counsel during chief and cross-examinations and when addressing the court. Watching their oral advocacy techniques, strategic approaches, and courtroom demeanour taught me a lot about effective advocacy and legal practice.
Go With the Flow
No matter how much you prepare, prepare, and prepare in advance of trial, surprises are an inherent part of trials, and maintaining flexibility is important. Whether it is a last minute witness schedule change, technology issues, or an unexpected objection from opposing counsel, you need to be prepared to adapt and adjust.
If a line of questioning isn’t eliciting the responses you expected, be prepared to adjust your strategy, rephrase your questions, or move on revisit that question again later. It’s normal to feel frazzled when things don’t go as planned, but stay calm as best as you can. Maintaining your composure will help you think clearly and respond effectively.
While thorough preparation lays the foundation for a smooth trial, your ability to adapt in the courtroom is equally important in being an effective advocate. Embrace the unexpected, and turn challenges into learning opportunities.
There is Always Room for Improvement
As lawyers, we should strive for excellence, but it’s important to acknowledge that perfection is unattainable, no matter how many years of experience or trials you have under your belt. At the conclusion of every case, it’s natural to look back and think about that one additional question you wish you asked, how you might have rephrased a key point in your closing arguments, or the objection you wish you had raised.
Instead of dwelling on what you perceive to be mistakes, view them as valuable opportunities for reflection and growth. Each case and trial is a chance to learn, refine your legal knowledge and advocacy skills, and set the stage for future success. Adopting this mindset allows for continual improvement and ultimately makes you a better lawyer and more effective advocate for your clients.
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.
