As a barrister and solicitor practising in the specialized area of estates and trusts, clients expect that I have a thorough and detailed understanding of the law. Not only does this require well-versed knowledge of the historical principles that form the basis of estates and trusts law in Ontario (the 1870 English decision in Banks v Goodfellow remains the authority for the capacity to make a will), but also being up to date on new and evolving trends. This requires lawyers to be trendy lawyers. I am not, of course, relying on the definition of trendy found in Urban Dictionary, a trendy website in and of itself, I am told – one that evokes posers – but the more traditional definition found in the likes of the Cambridge English Dictionary that indicates those in-the-know. With this in mind, I highlight some trending topics of which solicitors practicing in estates and trusts should be mindful.
Multiple wills are commonly used in estate planning to limit an estate’s exposure to estate administration taxes as only assets which require probate are included in the probated will (now known as a Certificate of Appointment of Estate Trustee with a Will). This practice, though, was turned on its head, and then back again, as a result of two Superior Court of Justice decisions, Re Milne Estate, and Re Panda Estate, and the Divisional Court's decision in Re Milne Estate. Although the SCJ in Re Milne Estate raised concerns about the validity and use of multiple wills, specifically the use of discretionary allocation clauses, the Divisional Court clarified that discretionary allocation clauses are not fatal to the validity of a will, and in Re Panda Estate, the SCJ found that a will is not a trust. These decisions ensure that using multiple wills remains permissible. Nonetheless, solicitors need to be careful of the wording used in allocation (also referred to as basket) clauses. The Ministry of Finance has also shared its position with respect to the proposed wording for primary and secondary wills, which can be found here.
Technological advances have made their way into estates and trusts. NoticeConnect has launched its Canadian Will Registry which enables lawyers to upload information about the wills they are storing, and to transfer, receive, and organize related digital records. Hull e-state Planner is a sophisticated will planning and drafting program utilizing AI to guide the lawyer and client through the will-planning process. Graphic visualization enhances the client experience while the automatic creation of a comprehensive will and other estate-planning documents saves the lawyer time and prevents many errors.
The introduction of technology in estate planning and administration does not end there. Digital assets, perhaps the trendiest word in estates and trusts in 2019 (as decided arbitrarily by me), continues to attract attention. Despite considering myself a ‘lite’ digital user, I have two personal e-mail addresses, four social media accounts, and have accumulated numerous points through reward programs including Aeroplan, Indigo, PC Optimum, Greenhouse Juice – the list goes on. Given that digital assets carry both a financial and personal value, solicitors are coming alive to these assets in the context of estate planning and the legal issues that arise in advising clients about the ability to transfer and redeem.
On opposite ends of the country, with opposite outcomes, testamentary freedom has returned to the judicial spotlight. In British Columbia, the court in Grewal v Litt limited testamentary autonomy after a testator left approximately 96 per cent of his 9 million dollar estate to his sons and only about 1.5 per cent to each of his daughters on the basis of the testator's adherence to traditional cultural values. Conversely, in the Nova Scotia decision in Lawen Estate v Nova Scotia Attorney General, the court ruled that the deceased's testamentary freedom was constitutionally protected by section 7 of the Charter. Although Spence v BMO Trust Company, which espouses testamentary freedom, remains good law in Ontario, it seems that now more than ever, solicitors have to take careful notes when obtaining instructions from clients and ensure that appropriate questions are asked when it comes to decisions being made about beneficiaries.
The making of a will(s) is not as simple as it may appear. Issues, such as the ones I have addressed in this article, require careful planning and thoughtful consideration. Clients expect their solicitors to understand these trends and provide proper advice.
November is the Ontario Bar Association’s Make a Will Month whereby members of the OBA help the public to understand the importance of having a will prepared by a lawyer; if you’re interested in leading one of the many Make a Will Month sessions scheduled throughout Ontario, please volunteer via the OBA’s Speakers Bureau.
About the author
Noah Weisberg is an associate at Hull & Hull LLP and chair of the OBA’s Trusts and Estates Law Section Executive.