I recently attended a replay of a Continuing Professional Development webinar, hosted by Ms. Lisa Toner and our own Mr. Ian Hull, in which a number of estates lawyers had the opportunity to give six-minute presentations on select, relevant subjects in estates law in 2021.
A presentation on holograph wills by Ms. Clare Burns particularly caught my attention.
Normally, when drafting a will, strict formalities are required, including the signatures of two or more witnesses. The one major exception in Ontario is the “holograph” will – a will written and signed entirely in the testator’s own handwriting.
However, as of January 1, 2022, a new section added to the Succession Law Reform Act, namely Section 21.1, will allow courts to order validation of an improperly executed document if it “sets out the testamentary intentions of a deceased.” The previous passing of similar “substantial compliance” legislation in other provinces has resulted in attempts to probate documents such as diary entries (B.C.), memoranda of an accountant (Manitoba), and sticky notes (Alberta) as testamentary documents, to varying degrees of success.
Ms. Burns suggests that Ontario will likely follow the lead of the British Columbia Court of Appeal in applying this new legislation. In the landmark decision of Re: Hadley Estate, the B.C. Court of Appeal applied the following two-part test: 1) is the document authentic?; and 2) if it is authentic, but not compliant with the formalities for holograph wills, does it represent the deceased’s intentions at the time that document was created? The Court also added that any valid document should have been drafted with the knowledge and consent of the deceased, if it was not in their own handwriting.
Furthermore, certain factors will support the finding of testamentary intention, including: if it was signed by the deceased, if there are witness signatures, if there are references to the revocation of previous wills, if executors are named, and if there are specific bequests. Conversely, there are facts that will weigh against a finding of testamentary intention, including: if written in pencil, if a document is incomplete, if using a pre-printed will form, and if a person has a previous formal will.
Nonetheless, it remains to be seen how this legislation will play out in litigation with the courts in Ontario.
Thank you for reading!
I recently had the pleasure of attending a Continuing Professional Development webinar offered by the Law Society of Ontario, namely the July 14, 2021 Wills and Estates Refresher.
The main topics discussed in this webinar related to both general issues in the process of estate planning, and particular issues related to the rise of virtual legal practice during the Covid-19 pandemic.
For example, the speakers discussed how many potential clients would approach an estate planning lawyer under the assumption that drafting their will and other testamentary documents would be a simple, uncomplicated process, until their lawyer soon discovered several issues with their assets and life situation that would actually significantly complicate their estate planning.
Six such factors outlined by the speakers were: 1) bequeathing a family cottage, 2) bequeathing a family business, 3) bequeathing to family members living in the United States or another foreign jurisdiction, 4) bequeathing real estate located in the US or another foreign jurisdiction, 5) bequeathing complex financial assets, and 6) bequeathing to children or spouses from a former marriage.
Imagine a situation in which a husband and wife are both married to each other for the second time, both have children from their previous marriages, with a daughter living in England, and a son living in Ireland, while owning a vacation property in Florida. One could understand why, in such a circumstance, drafting a will for the husband or wife would not be so “simple.”
Another cogent issue discussed was the rise of virtual client meetings and execution of wills over the course of the pandemic. Although this was a necessity during Covid, many virtual legal practices will likely continue into the future, as a convenience and cost-saving measure for both lawyers and clients. However, the speakers did note that a lawyer meeting virtually with a client should always be cautious, making sure that there are not other parties in the room with the client potentially unduly influencing their estate planning intentions. One speaker suggested that in the future, she would perform initial client meetings virtually, but would only commission the execution of wills in person. This seems like a reasonable compromise.
It remains to be seen how the profession will move forward in this regard, as many personal and professional restrictions related to the pandemic are gradually lifted.
Thanks for reading!
Join us on Monday, June 21st for the Ontario Bar Association’s Elder Law Day: A Conference for Lawyers and Other Professionals Assisting Seniors, sponsored by Hull and Hull LLP. The OBA Elder Law Program will be discussing the most pressing issues impacting our aging population. The expert faculty will get you up to speed on the latest developments and share need-to-know insights to take your expertise to the next level.
Hull and Hull LLP is proud to sponsor the Elder Law Day program. Our very own Natalia Angelini and Sydney Osmar are on the OBA’s Elder Law Executive, as Past Chair and Member-At-Large respectively.
We hope that the Eldar Law Day conference will bring to light some of the issues we have seen in this area of case law.
Here is the schedule for the day:
|10:00 am – 12:00 pm||Part 1: Critical Issues in Elder Law|
|12:15 pm – 12:45 pm||Keynote Address|
|1:00 pm – 2:30 pm||Part 2: What’s Really Going on Inside Long-Term Care and Retirement Homes|
|2:45 pm – 4:00 pm||Part 3: Lightning Round: Quick Tips and Tidbits for Your Elder Law Practice|
|4:00 pm – 5:00 pm||Virtual Networking|
You can register for the full-day program or exclusively for Part 1, Part 2, or Part 3, via the OBA website here. *All registrations will include the Keynote Address and virtual networking session.
We look forward to participating in and learning from our colleagues during the conference.
In July 2020, the provincial government announced a Commission into COVID-19 and long-term care. The Commission was mandated to investigate how the pandemic spread within the homes, how residents, staff and families were impacted, and the adequacy of measures taken by the province and other parties. With the expected release of the Commission’s final report on April 30, 2021, the province will now review the report and begin to consider changes.
Come join Hull & Hull LLP’s Natalia Angelini and Wahl Elder Law’s Judith Wahl as they co-chair the upcoming OBA program: Long-Term Care COVID-19 Commission Report, on Tuesday, May 11th from 12:00 pm to 1:30 pm.
The Chair of the Long-Term Care COVID-19 Commission, The Hon. Associate Chief Justice Frank N. Marrocco, will be sharing his insights. This will be followed by a panel discussion on the key legal issues that arose and are continuing to arise in Long-Term Care settings across the province.
This program is eligible for up to 1 hour and 30 minutes of substantive CPD hours.
Registration via the Ontario Bar Association can be found here.
As 2020 has come to a close, we all fervently hope that the coming year will be better than the last.
In that spirit of optimism, I have reflected on some resolutions as a lawyer.
- Improve Health – But, make it specific in some way. Like resolving to run in a 10k race later in the year.
- Sharpen Communication – Work to better client and colleague communication and consultation.
- Provide Recognition – It takes little effort to recognize the efforts of those around you, and to provide praise, and celebrate achievements.
- Finish CPD – Do those Continuing Professional Development hours early and before it becomes a worry.
- Get Organized – Attend to that one matter that you routinely avoid. Admit it. You have one.
- Manage Time – Make it specific in some way. Hold incoming emails until later in the day, instead of constantly interrupting workflow.
- Embrace New Technologies – It takes time and is anxiety making, but is usually a benefit. This is then followed by Cybersecurity nervousness.
- Seize the Future – Think about the future in a different way. Law and work itself have changed significantly in the last year. Such as working from home.
- Drink Less. The pandemic put an end to in-person networking, seminars, and social events but, this might be followed by more drinking. After the “Spanish Flu” it was the “Roaring Twenties”.
- Be Grateful – That the last year is over and although we all still have to be vigilant, this pandemic will end.
Studies have shown that only a small percentage of New Year’s resolutions actually get implemented! Good luck!
Thanks for reading!
I was able to attend a recent CPD program by the Advocate’s Society titled “Supreme Court of Canada Advocacy.”
A powerful keynote address was presented by the Honourable Madam Justice Suzanne Côté of the Supreme Court of Canada. Justice Côté’s remarks included an inside look at what lies behind the Supreme Court of Canada’s “big mahogany doors,” as she so eloquently phrased it. The Honourable Marshall Rothstein, Q.C., then spoke about the unwritten rules to getting leave to appeal.
Debate was had over the need for a script. Most panelists supported coming prepared with a script but cautioned against being married to it. When it comes to answering questions, advocates should see this as an opportunity to get off their script and engage in a dialogue with the bench. As Justice Côté points out, an oral argument is not supposed to be a monolog.
After discussion on the power of oral advocacy, the discussion shifted to the importance of the written argument. Although the factum is a critical component of any appeal, parties are under no obligation to reach the maximum page length. It was suggested that some of the most successful arguments can be made in 25 pages or less.
In addition to the factum, the Condensed Book can be a vital tool for advocates appearing before the Supreme Court. Under the Supreme Court rules, the Condensed Book may contain a two page outline of the oral argument. Preparing the this two page outlines forces advocates to truly narrow down their key points.
The panelists also spoke about the important role interveners can have in a case. Within the confines of a 10 page factum, and 5 minutes of oral argument, an intervenor can illustrate why a matter is of public interest, and provide supplemental answers to questions posed to the parties by the Justices. Interveners can play a critical role, and should not be overlooked.
Finally, the panel highlighted the power of a moot. Practice moots are one of the most valuable tools an advocate can use to prepare their case. The Supreme Court Advocacy Institute offers moot sessions where participants have the opportunity to moot their case before a panel of experienced litigators and retired justices.
Thanks for reading,