Articles 2019

Estate planning can be particularly difficult for parents of special needs children. Such children may need to be treated differently in the estate planning context, perhaps by receiving an unequal distribution from the parents’ estates to ensure they are provided for sufficiently. This raises an important question: will an unequal distribution for this purpose lead to a Will challenge by other family members?

The Brown Bag Lunch is a great forum to raise interesting and challenging practice questions among Trusts and Estates colleagues. In May, OBA members met for another monthly Brown Bag Lunch. Topics discussed included a recent decision about pour-over Wills, practical issues in obtaining an ancillary grant of probate, and more.

In April, the Ontario Estates Bench-Bar Liaison Committee held two meetings: the regularly scheduled meeting, and a special meeting at which Justice Dietrich made an announcement regarding the Toronto Estates and Commercial Lists. During the regular quarterly meeting, the committee discussed, among other things, the adoption or adaptation of the Toronto estates practice direction in other regions, and whether consent orders are permitted to be sought at 9:30 scheduling appointments.

The April Brown Bag Lunch was as interesting as ever. Attendees shared their experiences and gave input on a number of topics raised, including how to draft clauses for executor’s compensation and other practical matters.

When someone dies without a Will in Ontario, there are several issues that can come up vis-à-vis the deceased person’s spouse. One is the spouse’s preferential share, which was recently increased to $350,000, and another is whether the spouse will even be entitled to share in the distribution of the deceased person’s estate on an intestacy. Is Ontario behind the times in dealing with spouses in its intestacy rules?

A new bench-bar committee has been established at the request of the Superior Court of Justice’s Regional Senior Judges Council. The Ontario Estates Bench-Bar Liaison Committee had its first meeting in January 2022. At the January meeting, the Committee discussed several topics, including Estates List model orders, tracking decisions made pursuant to recent changes to the Succession Law Reform Act, and clarification regarding scheduling and court bookings for the Toronto Estates Office.

In December 2021, British Columbia became the first province to allow electronic Wills. Although there are certainly some potential pitfalls of electronic Wills, there are also a great deal of benefits, including practical considerations. Time will tell how successful BC's foray into electronic Wills is, and whether other provinces may also develop their own legislation in that regard.

Members of the OBA's Trusts and Estates Law Section gathered in March for the monthly Brown Bag Lunch. As always, participants raised fascinating practice questions, including an animated discussion about the concept of making a gift to an executor in lieu of compensation. One participant also previewed that some additional proposed changes to the probate forms and Rules would be coming shortly.

Multiple Wills can be a helpful estate planning strategy, which can result in significant estate administration tax savings. However, prudent drafting is key, as an error can lead to confusion and delay, as well as increased costs to the estate. Fortunately, the result in Gordon v Gordon, 2022 ONSC 550 was a good one for the executors and the drafting lawyer, but the decision serves as a reminder that even a simple error could potentially have significant negative consequences.

At the February Brown Bag Lunch, as usual, attendees had interesting questions and shared their knowledge and experience. Discussion topics included the new probate forms and recent changes to the Succession Law Reform Act, multiple Will drafting issues, and when the first dealings exemption may be lost.