WHAT DO I NEED WHEN CONTACTING AN ESTATES LAWYER?

When you find yourself in a situation where you need to contact an Estates lawyer, you might ask yourself: What should I have ready? In all matters involving Wills, Estates, incapable persons, and so forth, it is essential that you have the appropriate information at the ready.

 

1. Your Name and Contact Information

Intake calls are meant to gather essential information about you, as a potential client, and about the matter at hand. Oftentimes, the first thing a clerk will ask you for is your full name and contact information (e.g., phone number, email, etc.). This is necessary so that the firm can keep track of their potential clients, ensure prompt and effective communication, and schedule introductory meetings with potential clients.

 

2. The Name and Date of Death of the Deceased or The Name of the Incapable Person

During an intake call, the clerk will ask you whether the matter involves a deceased or incapable person. For a matter involving a deceased person, the clerk will require their full name and date of death. In the case of an incapable person, the clerk will only require their full name. This information is required to complete a conflict search (which I will discuss in the next section).

  • If There is a Will or No Will – (Deceased)
    • If the matter involves a deceased person, the clerk will ask whether they died with a will (“testate”) or without a will (“intestate”). This is so that the assigned lawyer knows whether instructions have been left about the distribution of Estate assets.
  • If There are POA Documents – (Incapable)
    • If the matter involves an incapable person, the clerk will ask whether there is/are Power of Attorney(s) for personal care and property. This is so that the assigned lawyer knows whether there is someone to make decisions on behalf of the incapable person with respect to their care and property.

 

3. All Parties Involved in the Matter

When law firms take calls from potential clients, it is required by the Law Society of Ontario (LSO) that the responsible lawyer clerk, etc. complete a conflict search of all names involved in the matter. This way, we can ensure that we are not currently representing (or have previously represented) any parties involved, which would create a conflict.

Any significant persons involved in the matter need to be shared with the correct spelling of their name, any names they are “also known as”, as well as their role in the matter. For example, you need to explain whether the individual is an Estate Trustee, Beneficiary, Power of Attorney, etc.

 

4. A Brief Summary of the Situation At-Hand

By providing a brief summary of your matter, the clerk can gain a better understanding of the services you require and determine whether their firm would be best suited to your needs.

For instance, you can discuss any general issues you have encountered with other parties, and how it may be interfering with the administration of an Estate. This communicates what type of matter the firm might be dealing with and the next steps the assigned lawyer would need to take.

 

While specific questions about fees and retainment cannot be discussed at the time of the intake call, providing this information is essential for Estate lawyers to fully understand your situation and know how to best help you.

 

Hannah Henley

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.

UNWILLING FOR A WILL? A CAUTIONARY TALE

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.

COMMENCING LITIGATION IN ONTARIO AND KNOWING WHERE TO DO IT

Although Casey & Moss’s offices are in downtown Toronto, we represent clients throughout the province of Ontario (not to mention clients who live outside Ontario and abroad).

When a client first retains us to respond to or to start litigation, they often ask what Ontario city the litigation is going to proceed in. This is especially true if the client, the other parties, the incapable person, or the deceased’s assets are located in different cities across Ontario.

There are several considerations that go into a decision about where to start litigation in Ontario.

First, if our client has been brought into an already-ongoing court proceeding as a respondent or a defendant, we will generally agree to the jurisdiction of the litigation selected by the applicant or plaintiff. Most court appearances and hearings under an hour long continue to take place over Zoom. As a result, it is just as easy for us to appear in court in Toronto, Kingston, or Thunder Bay. We no longer have to travel to courthouses outside Toronto, unless we are appearing on long motions, application hearings, or trials. Mediations and cross-examinations can also take place remotely, especially if parties and lawyers are based in difference cities around the province. This makes it easy and cost-effective for us to represent clients involved in litigation outside Toronto.

If our client is commencing litigation, several considerations come into play when choosing where to bring the proceeding.

The Rules of Civil Procedure say that if there is no statute or rule requiring a proceeding to be commenced in a particular county, then the proceeding may be commenced at any court office in any county named in the originating process.

We often recommend that our clients start litigation in Toronto, even if they or the other parties aren’t located in Toronto, because Toronto is home to the Superior Court of Justice Estates list.

The Estates List is a specialized court in Toronto comprised of judges who hear proceedings exclusively involving issues of estate, trust and capacity law. Currently, there are four judges sitting on the Estates List. Each of these judges has extensive experience with estate litigation. The judges not only have familiarity with these types of proceedings, but court procedure on the Estates List is tailor-made for estate litigation. For example, we can book 15-minute scheduling appointments before an Estates List judge so that we can quickly and inexpensively get orders for production of documents like medical records, which is frequently one of the first steps in estate litigation. Another factor is that there is mandatory mediation for estate matters in Toronto, which can mean earlier settlement discussions and chances for resolution.

In our experience, if we bring a proceeding on the Estates List in Toronto, counsel in other cities rarely object or seek to have the proceeding transferred to a different courthouse. This is because of the expertise and efficiency of the Toronto Estates List, as well as the fact that counsel outside Toronto don’t have to travel to Toronto to attend in-person scheduling appointments, case conferences, short hearings, or mediations. All of this can be done over Zoom.

The decision about where to start litigation is something we discuss early on with our clients and is a decision we make together, based on what we think will be most efficient and cost-effective.

 

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.

ARE YOU A BARRACUDA?

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

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.