The Six-Minute Estates Lawyer 2011 – Hull on Estates # 247
This week on Hull on Estates, Craig Vander Zee and Sharon Davis discuss the Law Society of Upper Canada’s recent program The Six-Minute Estates Lawyer 2011, which was held on April 27, 2011. This annual program featured a series of speakers including Hull & Hull LLP own Suzana Popovic-Montag, Craig Vander Zee and Jordan Atin.
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The Six-Minute Estates Lawyer 2011 – Hull on Estates- Episode #247
Sharon Davis: Hello. Welcome to Hull on Estates. You’re listening to episode #247 on Tuesday, May 2.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Craig Vander Zee: Hi and welcome to another episode on Hull on Estates. I’m Craig Vander Zee.
Sharon Davis: And I’m Sharon Davis.
Craig Vander Zee: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at firstname.lastname@example.org or you can visit our blog at estatelaw.hullandhull.com.
Sharon Davis: Hi Craig, how you doing today?
Craig Vander Zee: Very good, Sharon, yourself?
Sharon Davis: Very well, thanks. I heard that you went to a great program last week, April 27th. It was the Six Minute Estates Lawyer.
Craig Vander Zee: Yeah, I thought it would be a good idea just to mention that. The program was 3 hours in length. It was the morning on April 27th and it covered a full range of topics. And because the…although it’s called Six Minute Estates Lawyer, the actual presentations were 8 minutes in length. But because they’re only 8 minutes in length, there were certainly quite a number. In fact, I think there were 19 separate presentations.
Sharon Davis: Very good. And I’m looking at the topics. They really look like great topics here. I’m just gonna go through some of them so that if you’re looking for materials on these particular topics, certainly the Six Minute Estates Lawyer is a great place to go to look them up. Update on Family Law Act amendments by Barry Corbin. We had Predatory Marriages by Kimberly Whaley. A Charities Update by Elena Hoffstein. Trust Residence Post-Garron by Sheila Crummey. Inter Vivos Trust Audits by Angela Ross. Pet Trusts by Thomas Grosinger. Common Issues on Applications for Certificates of Appointment by Julie Lesaki (I’m probably not pronouncing that correctly but I’m getting as close as I can). Administration of Multiple Wills, Claire Sullivan. US Estate Tax Update by Kevin Gluck. Estates and Trusts Hotspots by Deborah Petch. CPD Requirements by Diana Miles. I know that’s a big one coming up. We certainly all have to make sure we’re getting those credits in. Cy Pres Section 13 Orders and When to Serve the OPGT. I’ve got quite a few here actually that are listed.
Craig Vander Zee: Yeah.
Sharon Davis: ‘Cause 6 minutes and 8 minutes really do add up, don’t they?
Craig Vander Zee: And that last presentation was by Dana Disante.
Sharon Davis: That’s right. The Cy Pres Section 13 Orders. Life Insurance and RRSP Beneficiary Designations for Minor Children, and that was by Sue Stamm of the Office of the Children’s Lawyer. Habeus Corpus and the Substitute Decisions Act by Karon Bales. Evolution of Orders appointing Estate Trustee during Litigation – What should be covered, by our Hull & Hull’s own Suzana Popovic-Montag. Increasing the Odds of a Successful Mediation by Claire Burns. Estates and Privilege by Justin de Vries. Costs and the Impact of Proportionality Considerations by Jordan Atin, also of our office. And Conflicts involving the Role of Estate Trustee and Estate Solicitor, last but not least, Craig Vander Zee.
Craig Vander Zee: Yes. And again, I thought the presentations and the materials were extremely informative and certainly intriguing as well. So again I recommend them to people who might be interested in those topics or even just a certain portion of those topics. I thought I might take a moment just to touch upon my topic, Conflicts involving the Role of Estate Trustee and Estate Solicitor. The lawyer who acts as both the solicitor for the Estate and the estate trustee takes on a dual role. And it’s important to realize that with that dual role, that each of the responsibilities and duties that arise in each of those roles are different and that the manners of being compensated are different, and that conflicts can arise. And also, it’s important to recognize that the risk of personal liability and the potential protections afforded to each of those roles are indeed different as well. So it’s important to take that onboard when you’re taking onboard both the roles. And when looking at the duties of a solicitor as estate trustee, I think the starting point would be, well what are the duties of an estate trustee? Whether one’s a solicitor or not.
Sharon Davis: I’ll bet that it’s very important to make sure that you have a clear idea of which duties fall into which category for sure.
Craig Vander Zee: Well that’s right and, you know, the estate trustee has obligations to the beneficiaries, we know that. But estate trustees can also have obligations to third parties by way of statute or another reason. And so the estate trustee has to be mindful of that. And some obligations that stem from that loyalty is a duty to avoid situations which place the estate trustee in a position of conflict or deriving a profit from the position, a duty to act impartially amongst the beneficiaries, a duty to inform and account, and a duty to act personally in the performance of the duties imposed. And I don’t intend today to get into the details of those other than to say that those are duties which have been seen to be attributed to an estate trustee. And obviously one needs to look to the Will itself or to statutes such as the Trustee Act as to whether those duties or obligations are expanded upon or limited by one of those. And the duties…these duties apply equally to the solicitor who acts as the estate trustee, as they would to the estate trustee who is not a solicitor for the Estate.
But what’s interesting is Madam Justice Greer noted in a paper that she presented last year entitled “View from the Bench – Standard of Care applied to lawyer as attorney for trustee” and that was in an Ontario Bar Association program presented in May of 2010. She indicated that there was no codification or partial legislative governance for lawyers who act in both of those roles. So lawyers need to be mindful of the duties that can apply to them and solicitors also have to be mindful that in addition to that, they have to meet their professional obligations in accordance with the Rules of Conduct and those rules from the Law Society of Upper Canada. And where the rub seems to be most often in the dual role is with respect to the issue of compensation. And how is the estate trustee compensated and how is the Estate solicitor compensated? And the estate trustee finds his or her compensation based on the terms of the Will or the Trustee Act, that is the sections of the Trustee Act, or the case law that has developed. The Estate solicitor initially looks to Section 61.4 of the Trustee Act and then the manner of being compensated. And as often is the case, the estate trustee is remunerated based on a percentage being applied to the capital and revenue. But an estate trustee’s compensation is intended to cover all of the services that have been provided by the estate trustee to the Estate. Whereas an Estate solicitor is being remunerated for the specific services being provided for. And typically that is on an hourly rate and on a quantum meruit basis.
So the problem arises if that individual, the lawyer, is getting paid twice for the same service.
Sharon Davis: Absolutely. I would think, too, that the standard expected of lawyers in general…you’re always a lawyer. And the Court will always recognize that you’re a lawyer. And so it’s very important to be extra vigilant and to comply with all of the duties to the letter, because you’re not gonna get a lot of slack when you’re a lawyer not obeying, you know, the rules for sure.
Craig Vander Zee: Well certainly litigators in the Court are going to look for the differentiation of the services. And so if there was a service that was provided as an estate trustee and the solicitor is charging an hourly rate for it, well then the case law would indicate that that is gonna be deducted from the estate trustee’s compensation if it has been paid to the lawyer in his capacity as Estate solicitor. So it’s important to maintain separate dockets in that capacity rather as Estate solicitor, and for those services provided as the estate trustee. And in the event that those services are not differentiated and there are separate charges, then the case law is extremely indicative of there being a reduction in the compensation. And again, the lawyer whose playing in that dual role is gonna have the onus upon him or her to prove the compensation that they’re asking for.
And so in my paper I covered off more and I dealt with a number of cases that deal with this potential issue. But I thought that it might be useful to just mention that in today’s podcast. Something else that I thought we would just mention is that there is an OBA, that is, Ontario Bar Association program…indeed there are two programs being run on May 10, 2011. One is the morning program being chaired by Suzana Roth for the period 9:00 a.m. to noon. And it’s entitled “Will and Estate Planning Essentials”. And it’s my understanding that the program covers three of the CPD hours that are required by the Law Society.
Sharon Davis: And then the second one, in the afternoon from 1:00 o’clock till 5:00 picks up from there and it’s “Beyond Will and Estate Planning Essentials”. And so this provides more of an in-depth review of Will and Estate planning topics including emerging practice issues. So both a great day to attend for sure for Estates practitioners.
Craig Vander Zee: Yeah, no, the topics being covered in those are certainly equally interesting.
Sharon Davis: They are. Joanna Ring-Rose and Edward Okavich will be chairing that piece of the CPD that day.
Craig Vander Zee: And so that would also be, I think, an excellent day to attend one or both of the programs if you’re interested in the topics being covered on that. And I think people can contact the Ontario Bar Association to find out more about those programs if they’re interested in attending.
Sharon Davis: That’s right.
Craig Vander Zee: And I think with that, Sharon, we’re done for today.
Sharon Davis: I think that’s about it. Oh, one more thing I think we should probably mention is our end-of-year dinner. That’s on May 31st. So if you don’t want to learn anything but you’d like to come out and have a lot of fun, you can certainly do that as well. And details for that would also be on the website for the OBA.
Craig Vander Zee: Yes. And I think, thank you for remembering to mention that. At the year-end dinner, the OBA Award of Excellence for our section, that is the Trusts and Estates section, will be presented. And this year’s winner is Mary MacGregor who’s a very deserving recipient of the award. So that will be presented. And then also the Hoffstein Book Award will be presented as the Wittifield Award will be presented as well. And as the current Chair of the OBA Trusts and Estates section, I’ll be closing out the year and the new slate for the section executive for 2011/2012 will be announced. So that is…that’s a fun evening as well and certainly one where a chance to meet colleagues in the Bar again. And that’s gonna take place again at the Distillery District this year at the RKO again. So…
Sharon Davis: That was great last year so it’ll be a lot of fun again.
Craig Vander Zee: Yeah.
Sharon Davis: And it’s always a great excuse to get out there and celebrate our own because that’s what it’s all about. When there’s excellence out there, you want to make sure you acknowledge it for sure.
Craig Vander Zee: And then I guess I can say again, I think that’s it for today’s podcast.
Sharon Davis: This time I think you’re right though. So that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Craig.
Craig Vander Zee: It was certainly my pleasure, Sharon, and I look forward to podcasting with you again soon.
Sharon Davis: And we look forward to hearing from our listeners as well. You can send us an email at email@example.com and be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of Estates law. We hope that you enjoyed our show. I’m Sharon Davis.
Craig Vander Zee: And I’m Craig. Until next week, so long.
Sharon Davis: Thanks.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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