Whether favourable or fraught, complex or relatively clear-cut, family dynamics are undeniably influential and often play a central role in shaping the outcome of legal matters, particularly in the areas of estates, family and residential real estate law. Recently, I had the privilege of participating in an engaging and thought-provoking plenary on this topic at the 2024 Ontario Legal Conference. In a fascinating discussion – moderated by Alex Procope of Perez, Bryan Procope LLP – my co-panelist, Kavita Bhagat, of Kavita V. Bhagat Family Law Solutions, and I shared our experiences of how understanding and responding to the needs of clients in the context of their family relationships can make us better legal service providers. The following are some key take-aways from the discussion.
Avoid being overly transactional with clients
Estates solicitors are typically hired for specific, time-limited engagements, resulting in, for instance, the production of a Will and Powers of Attorney or a successful application for a Certificate of Appointment of Estate Trustee. It is easy to get caught up in checklists to complete these retainers.
It is important, however, to get context around a client’s instructions. The best laid plans can go awry if we do not take the time to do our due diligence at the outset of the retainer. Take time to learn about the factors influencing the client’s decisions and document these discussions for your file.
One panel recommendation was to include a family tree in the intake process. This can include detailed notes on relationships the client has said are difficult or that could impact their decisions. In the context of estate planning this may shed light on a decision to exclude a beneficiary, or in an estate administration, it may guide the best method for communicating with an ornery family member.
Changing definition of family
A further reason to get detailed family information is the changing definition of family. How often have you been in planning discussions only to realize that the son the client keeps referring to is a stepson, never legally adopted? Or that the daughter they referenced is a daughter-in-law?
A key part of a Will is to define categories of relationships. If you are using a generic definition, you may inadvertently exclude someone that the client wished to benefit but who did not meet the legal definition of a child or issue. Digging a little deeper at the due diligence stage can avoid unintended results.
The impact of a client’s stage of life and/or culture on family dynamics
It is important to balance issues of professional liability with the client’s needs or requirements vis-à-vis family support when they are completing their estate planning or if they are administering an estate. While it is important to separately confirm the client’s intentions are their own, an elderly client or someone with mobility issues may well need the ride to your office or for someone to be present nearby in case of a health issue. Certain clients simply require greater assistance to attend meetings, or to access technology.
While we need to be alert to red flags for undue influence or mistreatment, there are not always nefarious intentions on the part of helping family members. In fact, the cultural background of the client may be such that there is a less individual, and more a consensus mindset at play.
The four Rs of providing trauma-informed services
The following guidance is from the Department of Health and Human Services (USA)[i]:
- REALIZE there is wide-spread impact of trauma in our society.
- RECOGNIZE signs and symptoms in clients.
- RESPOND by integrating knowledge about trauma into your procedures and practices for service delivery.
- RESIST re-traumatization when structuring service provision and interactions with your clients.
To elaborate on the impact of trauma, consider what happens when assisting an executor with an estate administration. It is important to remember that experiencing the death of a family member can be a form of trauma. Depending on the relationship of the executor to the deceased, it may take some time for them to process the information and steps involved to administer the estate.
Approaching interactions in an empathetic and compassionate manner may be crucial to avoid having a client shut down or stop responding in a timely manner. Remember, the client may simply be feeling overwhelmed or triggered. Patience can be key to moving the matter forward.
Being self-aware: unconscious bias
All human beings see the world through their own unique lens and being a lawyer does not change that. This lens is created from a myriad of personal and professional experiences, our own lived traumas, the vicarious trauma of clients, our cultural and family backgrounds, and life experiences in general. It is important to stay alert to where and how our unconscious biases and expectations can affect our interactions with our clients and our assumptions about their family dynamics.
About the author
Gosha G.S. Sekhon is owner/principal lawyer at Sekhon Legal Services and CPD liaison on the OBA's Trusts and Estates Law Section Executive.
A version of this article was originally published on the OBA Trusts and Estates Law Section’s articles page.
[i] SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach, prepared by SAMHSA’s Trauma and Justice Strategic Initiative July 2014 [Department of Health and Human Services – USA].