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.
Sep 12, 2024
When I first told friends, family, and even my hairdresser that I’d be spending my summer working in the field of Estate Litigation, the response was often a puzzled, “Why Estates?” In fact, some even threw in the casual “Have you considered corporate? They make so much money.”
My usual response was that I’m quite confident about my decision.
I really enjoyed Wills and Estates in law school, I did reasonably well in my Civil Procedure class, and I also had some personal experiences that sparked my interest in Estates Lit. Plus, as an avid fan of reality TV shows centered on family drama, how could I resist?
But, in reality, I was a bit anxious and unsure of what to expect – was it too early to jump into such a niche field of law? Was I really limiting myself, or conversely, was I biting off more than I could chew by working in an area that required such specific expertise?
Now, as the summer work term comes to an end, I’m happy to report that all these minor anxieties were based on misleading perceptions about what the field of Estates Lit was all about. Having spent nearly four months in this work, I am now even more confident in my decision to pursue it as a career.
For all my fellow anxious law students exploring career options, here’s why Estates Litigation is so awesome:
1) It’s a Surprisingly Comprehensive Practice
There’s no denying that Estates Lit requires a specific set of skills and knowledge that can only be acquired through experience in the field. The practice of Estates Lit itself, however, is not nearly as niche as people may think. This summer taught me just how expansive and multifaceted this filed is, as our cases regularly drew on family law, tax law, real estate, and even some corporate/commercial law considerations.
In reading email exchanges on these files, I noticed that estates lawyers rarely handle purely estate issues, and that they must constantly consider how the matter at hand could impact other non-estates aspects of a client’s life. To really excel in Estates Lit, you will likely need to be familiar with (or at least have a well-established network of professionals in) various areas of law.
2) Quick Thinking and Creative Problem-Solving
What truly captivated me about Estate Litigation was the creativity and nuance required in its practice.
As I sat in on mediations, hearings, and even client calls, I watched and listened to lawyers think on their feet, sifting through a range of reasonable alternatives to find the best solution. Nine times out of ten, the lawyers had to manage delivering accurate legal advice under tight time constraints, all while navigating the emotionally charged atmosphere that often accompanies estates disputes.
At first, it was daunting to witness how effortlessly they managed these challenges, but as the summer progressed, I began to understand the skill and dedication that underpinned their success, discussed in point 3 below.
3) A Commitment to Growth and Learning
One of the most valuable lessons I learned this summer is that Estate Litigation is anything but
stagnant, and the skills required to excel in it are ever-evolving. The lawyers at our firm routinely committed to advancing their knowledge and skills, some by attending Ontario Bar Association seminars, others by engaging in lively LinkedIn discussions about the latest developments in the law, and many by continuing their education via specialized courses and certifications that enhanced their Estates Lit expertise.
This commitment to continual learning showed me that even the most experienced associates and partners in the field of estates remain students of the law—a key trait of the truly great practitioners.
4) Making a Real Impact
Before this summer, I hadn’t fully grasped the profound impact that Estate Litigation can have on clients. Yes, all litigation can be costly and stressful, but Estate Litigation carries the added weight of emotional histories, close relationships, and family dynamics.
The disputes often revolve around items of significant sentimental value or deeply personal matters, making the stakes feel incredibly high. It was here that I saw the true power of this field: the ability to help clients navigate some of the challenging and emotionally fraught moments of their lives. The satisfaction of knowing that our work could bring resolution and peace of mind to these individuals was incredibly rewarding.
5) The People are Great!
When interviewing for this position, I was told that the Estates bar is known for being very friendly, and my summer experience truly was a true reflection of this statement. I recognize that what made my work so enjoyable wasn’t just the nature of the legal issues or the files, but rather the people I worked with and learned from.
No field of law exists in a vacuum – if you take a course in Tax Law, knowing you hate all things tax, but happen to be taught that course by a stellar professor, you may find yourself considering a career in tax. This may have been what happened in my case. I got to learn about Estates Lit from a team of colleagues who cared about mentorship and collegiality, which is how I found myself excited to come into work every day.
For all of these reasons, I absolutely cannot to return next summer to complete my articles at a great firm, in a great field of law.
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.
Aug 9, 2024
Pop science is full of theories as to what effect birth order has on one’s personality, and how it influences behaviour and shapes development. Eldest children (especially daughters) are said to responsible and high achievers. Middle children are social and rebellious. Youngest children are charming and manipulative.
Theories link education and IQ to birth order, as well as risk tolerance. You can read studies suggesting that birth order will shape your career, romantic partnerships, and physical health. Some psychologists believe these differences exist even outside cultural norms that treat children differently based on gender or birth order.
So, does birth order also influence estate litigation?
In our practice, disputes among siblings are common. The parties to a will challenge or other estate dispute are often the Deceased’s children. And while there may be no science supporting a link between birth order and personality, people do tend to play a certain role in their family, whether a result of those roles being foisted upon them, because they have voluntarily taken them on, or because of more nuanced ways that people develop in a relation to other people.
In estate litigation, as with any dispute among family members, those childhood roles can rise to the forefront, pulling siblings into the same dynamics they had growing up. This can be deeply upsetting, and add to the emotional toll of litigation. It can also contribute to parties becoming entrenched in their positions. For this reason (and many others), anyone involved in litigation against family members should be sure to seek out support, including from friends, a therapist (always a good idea!), and some basic self-care. While your lawyers can advise you on the risks and benefits of various legal positions, there may be other interpersonal dynamics at play in the background, and there are other important considerations, including personal wellbeing and the health of family relationships, to take into account in making decisions in your litigation. These aren’t commercial disputes among arms’-length parties, and it’s rarely as simple as one side being right and the other wrong.
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.
