(This article has been condensed from the original, which was included in the materials for the OBA Legal Conference and Retreat 2025 under the title “Ten Key Considerations in Estate Planning: A Legal Practitioner’s Guide”)
Estate planning is often perceived by clients as a straightforward process, but for legal practitioners, it involves a complex and sensitive web of financial, legal, and personal dynamics. An effective estate plan not only distributes assets according to a client’s wishes but also minimizes the risk of litigation, tax burdens, and family conflict. The following are ten critical challenges that every lawyer should keep in mind when advising clients on estate planning matters.
1. Clarifying Who the Client Is
One of the first and most important steps in estate planning is determining exactly who your client is and who it is not. It is essential that the lawyer establishes a direct and independent relationship with the actual client — the individual whose estate is being planned. A clear retainer agreement should state explicitly who the client is and who it is not.
2. Debunking the “Simple Estate” Myth
Clients frequently describe their estate as “simple,” but experience shows that few estates are truly uncomplicated. Even the most basic estate plan requires careful due diligence, from asset review to family dynamics. Lawyers should resist the temptation to rush through the information-gathering phase, as early oversights can lead to significant problems later. Having a consistent method of information gathering, whether it is a set document or a software, can be invaluable.
3. Understanding Asset Ownership
One area that demands meticulous attention is the ownership of assets. Misunderstandings or assumptions about who owns what — and how — are common.
A thorough approach typically includes a three-stage process: (1) an estate questionnaire is completed by the client, (2) the lawyer completes an examination of supporting documents and ownership searches as available and/or provided by the client, and (3) the lawyer has a detailed conversation with the client about their understanding of property ownership including any possible underlying ownership agreements or understandings.
4. Navigating Family Dynamics
Family relationships are at the heart of estate planning and understanding them is essential to the work of an estate planning lawyer. Estrangements, blended families, and sibling rivalries, among a few examples, can all affect the administration of an estate. It is prudent and necessary to ask about the structure of a client’s family, and to identify any conflicts or potentials for conflict.
It is important to evaluate whether certain family members receive support that could give rise to dependants’ claims. Clients are often unaware of equitable rights or dependant claims that an arise in their treatment of family members. Counsel should review the categories of individuals that could be entitled to claim dependant’s relief under the Succession Law Reform Act, R.S.O. 1990, c.S.26.
5. Assessing Capacity
The preeminent case of Banks v. Goodfellow (1870), LR 5 QB 549 (UK) provides the key test for capacity, comprised of the following queries:
- Does the testator understand the nature of the act of making a will and the effect/consequence of doing so?
- Does the testator understand the extent of the property being disposed of via the will?
- Does the testator understand the nature of any claims that might be made by persons who could expect to benefit from the estate?
- Is the testator affected by any delusions or disorders of the mind that are influencing the manner of the planned estate disposition?
A client may appear well-dressed and articulate, but that alone is not enough to determine capacity. Use probative and open-ended questions when interacting with the client. Document your assessments carefully and complete these both at the time that instructions are given and at the time that a will is executed.
6. Choosing the Right Executor
Being an executor requires a wide range of skills: organization, financial acumen, impartiality, and the ability to navigate legal and tax procedures. It is important to alert the client to these aspects and to discuss the tasks and responsibilities of an executor. This will allow the client to make an informed and appropriate decision on who should act.
7. Correctly Naming Charities
Clients may not recall the formal legal name of an organization or whether it is properly registered with the Canada Revenue Agency (CRA) for tax receipt purposes. Lawyers should confirm an organization’s identity, including its proper and complete legal name, and registration status, as well as ensure that the will includes correct nomenclature.
Wills should also include a cy-près clause, which allows a gift to be redirected if the named charity no longer exists or has changed its purpose.
8. Understanding Contractual Obligations
A person’s ability to freely dispose of their estate can be limited by prior legal agreements or obligations. Lawyers should conduct due diligence to uncover any contracts or obligations that may override a client’s testamentary wishes. These may include marriage contracts, cohabitation or separation agreements, shareholder agreements, court orders, trusts, and legal settlements.
Copies of all relevant agreements should be obtained and reviewed. Clients must be made aware of any restrictions or risks associated with these obligations. Overlooking these details could result in legal challenges or professional liability.
9. U.S. Citizenship and Cross-Border Issues
U.S. citizenship or tax residency can have significant consequences for estate planning. Explore with the client their place of birth, residency and citizenship. All of these bring their own unique tax filing and payment requirements to the table, depending on jurisdiction.
This is an area where thorough intake procedures are critical. If U.S. tax or reporting obligations apply, lawyers must explore more in-depth planning options to avoid future penalties or double taxation. When in doubt, engage an expert in the area.
10. Understanding Canadian Tax Implications on Death
Finally, lawyers should educate clients about the Canadian tax implications of death, including the deemed disposition of assets which can result in significantly more taxes owing. Many clients are unaware of how much the CRA may claim from their estate. Tax-efficient planning can include strategies like estate freezes, charitable donations, and proper use of registered accounts.
Conclusion
Estate planning is far more than drafting wills and powers of attorney — it requires a holistic understanding of law, family, finances, and psychology. By approaching each file with diligence, empathy, and attention to detail, legal professionals can create estate plans that are legally sound, tax-efficient, and aligned with the client’s true wishes. These ten considerations offer a framework for doing just that, while also reducing the risk of disputes, regulatory issues, and professional liability.
Disclaimer: The information provided in this document is for general informational purposes only and is not intended to constitute legal advice or create a solicitor-client relationship. Readers should not act upon this information without seeking professional legal counsel specific to their individual circumstances. Estate planning involves complex legal and tax considerations, and professional advice should be obtained before making any decisions. The author and publisher accept no responsibility for any loss or damages incurred because of reliance on the information contained herein.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.