Tag: Law society of upper canada
When applying for a Certificate of Appointment of Estate Trustee with a Will, the applicant must be certain that the Will annexed is the Last Will and Testament of the Deceased. Ideally, the testator will have discussed the location of their Last Will with a trusted family member, friend or professional and it will be easily located at the appropriate time.
If this is not the case, there are a number of places to begin your search for a Last Will, as discussed by Sean Lawler in his article “Wills Kept by the Law Society of Upper Canada” in the most recent issue of Deadbeat, a publication of the Trusts and Estates Law Section of the Ontario Bar Association.
Some of the places Wills are often kept include the following:
- The drafting lawyer’s Wills vault.
- Among the Deceased’s possessions.
- In a safety deposit box.
- With the Executor.
- With an attorney for property or for personal care.
- On file with the Superior Court of Justice pursuant to Section 2 of the Estates Act, which establishes a Wills depository administered by local Court offices.
If you are unsuccessful locating a Will as above, you can place an ad with the Ontario Reports or other publication to determine if another lawyer who acted for the Deceased, or any other person, is in possession of a Last Will.
One other place to look is the Law Society of Upper Canada (“LSUC”). The files of many lawyers who die, retire, or are disbarred are transferred to LSUC’s Trustee Services Department. Most files are now stored electronically.
LSUC keeps over 45,000 Wills, a number that increases by approximately 3,000 per year. The Wills register can be searched by the name of the lawyer or by the name of the Testator.
The key takeaway here is that estate planning should not be a secret. Discuss your Will with your family (contents and location) and make it easy on loved ones when the time comes to probate your Will.
Sharon Davis – Click here for more information on Sharon Davis.
Lawyers frequently take funds into their trust accounts on behalf of clients and others. Usually, it is not difficult to determine to whom those funds belong. However, what happens when the beneficial owner of funds held in trust cannot be identified or located?
In Ontario, section 59.6 of the Law Society Act permits a lawyer (or licensed paralegal) who has held money in trust for or on account of a person for at least two years to apply for permission to transfer the money to the Law Society of Upper Canada (“LSUC”) if,
- The lawyer has been unable to locate the person entitled to the money despite having made reasonable efforts throughout a period of at least two years; or
- The lawyer is unable to determine who is entitled to the money.
The application procedure for transferring the money to LSUC is set out in By-Law 10.
You must complete and file the licensee application form, which will be reviewed by LSUC. Upon completion of the review, LSUC will notify you whether permission to transfer the money to it has or has not been granted.
If permission is granted, you must,
- Send a trust cheque, made payable to "The Law Society of Upper Canada, in Trust", in an amount equal to the amount of money for which you have received permission to transfer; and
- Send copies of your financial records relating to the money which you have been permitted to transfer.
Permission to transfer money will typically be subject to the condition that you inform LSUC immediately if you obtain any new information relating to any person entitled to the money that was transferred.
Once the money has been transferred, your liability as trustee or fiduciary with respect to the amount transferred is extinguished.
See the LSUC website for more information.
Sharon Davis – Click here for more information on Sharon Davis.
A recent article in the Ontario Lawyers Gazette discusses succession planning for lawyers with respect to their practice. Lawyers often fail to plan for their retirement or death and often do not set up a formal succession plan for their practice to the determent of their families, clients, and colleagues.
The article states that 41% of practicing lawyers are over 50 years old and 34 % of all lawyers in Ontario are sole practitioners with an additional 29% working in firms of two to ten lawyers. However, often lawyers do not prepare well enough in advance for the winding down of their practice or what will happen to their practice in the event of their death or disability.
The article makes a number of helpful suggestions including:
- Advising sole practitioners to assign another licensed lawyer or paralegal with alternative signing authority for their trust account in the case of an emergency;
- Suggesting that practitioners name a licensed lawyer or paralegal as a limited trustee in their Will for the sole purpose of winding up a practice;
- Advising lawyers that a non-lawyer trustee or attorney pursuant to a Power of Attorney may not be able to deal with some of the issues with respect to winding down a practice;
- Advocating that lawyers communicate with their families, partners, and employees their succession plan; and
- Advising lawyers to plan well in advance (i.e. five years) to maximize their financial compensation.
The Law Society offers A Succession Planning Toolkit and a Guide to Closing Your Practice to assist lawyers. On May 20, 2009, the Law Society will be offering a teleseminar Succession Planning for your Practice discussing these topics and more.
Thanks for Reading,
In early April I attended the The Six-Minute Estates Lawyer 2007, a seminar conducted by the Law Society of Upper Canada.
Ann Lalonde, Senior Counsel for the Office of The Children’s Lawyer gave an interesting presentation on Will drafting errors that her office commonly sees. While the paper she presented included 11 errors, I’ll focus on her top five:
1. No residue clause or residue given away multiple time
- The testator makes three bequests of $25,000.00, says nothing else in the Will, then dies with an estate worth $100,000.00
2. The Will requires an asset to be held without considering the consequences that may result
- The testator dies leaving an estate that consists mainly of shares in a major bank. The Will says that the trustees should “hold the shares”, but gives no further direction.
3. The Will contains a gift to a class, but does not include a certain closing date
- The testator leaves a gift to his grandchildren which is distributable when “the youngest grandchild attains the age of 25 years.”
4. Failure to account for future adoptions or non-adoptions
- The testator leaves a gift to his children. At the time of death he has step-children that he has always treated as his own, but never adopted.
5. Staggered distributions with no gifts over
- The testator provides for a legacy to his grandchildren with a staggered distribution at ages 18 and 21. There is no provision for what happens if the grandchild doesn’t reach age 21.
From a practice standpoint, it is important for the lawyer to discuss gifts that are being made in detail and to ensure the client understands the implications of the Will that has been drafted. It is also essential for the lawyer to proof-read her work and ensure that any disputes that result after death are not because of avoidable mistakes.
Have a great day!
The 2007 Bencher Election and the respective campaigns by the Benchers seeking election (or re-election as the case may be) have been ongoing for quite some time now. Indeed, the process itself is pretty much at its end, except the voting. Many may have already voted. The deadline for voting in the election is April 30, 2007 at 5:00 p.m. EDT. Voting may be done by way of internet, telephone or mail.
There are 40 Bencher positions that are up for grabs – 20 from outside of Toronto and 20 from within Toronto.
The Law Society of Upper Canada is governed, however, by a Board of 48 Benchers. Forty of these 48 Benchers are the lawyers from across Ontario that are being elected on a regional basis as part of this election. The public is represented by the Law Society’s eight lay Benchers who are appointed by the Lieutenant Governor-in-Council (of the Ontario Government). There are also several ex-officio Benchers including former Attorneys-General of Ontario and former Treasurers of the Law Society.
The Benchers meet every month (Convocation) to deal with matters related to the governance of the legal profession and to make policy decisions. Benchers also sit on various Law Society Committees, and they participate on panels that hear cases concerning the conduct and competence of lawyers.
Members of the Law Society of Upper Canada in good standing are eligible to vote in the bencher election.
It is obviously important for members to vote in the current election in order to help determine the direction and governance of the profession for the next four years. As the adage goes, if you don’t vote then you can’t complain.
On April 26, 2007, The Law Society of Upper Canada will be honouring and presenting our own Rodney Hull with the Law Society Medal.
The Law Society Medal was struck in 1985 as an honour to be awarded by the Law Society of Upper Canada, the governing body of the lawyers of Ontario, to members who have made significant contributions to the profession.
The tribute is given for outstanding service within the profession whether in the area of practice or in the academic sphere or in some other professional capacity where the service is in accordance with the highest ideals of the legal profession, whether by devotion to professional duties over a long term or for a single outstanding act of service.
This honour is yet further recognition of Rodney’s distinguished career, which has included service to his profession on so many fronts.
He has been a lecturer at the Ontario Bar Admission Course and at Law Society of Upper Canada, Canadian Bar Association and Canadian Tax Foundation programs. He has also made extensive contributions to academic and professional journals in Canada. He is also the author of two standard reference texts.
Rodney was called to the Bar in 1957 and appointed a Q.C. in 1969. Aside from being a certified specialist in Civil Litigation, he is a Fellow of the American College of Trust and Estate Counsel and an Academician, The International Academy of Estates and Trust Law.
Rodney was also awarded the Ontario Bar Association Award of Excellence for Estates and Trusts in 2005.
Congratulations Rodney, the firm is very proud of you and your many outstanding accomplishments.
On April 12, 2007, I attended, with colleagues from Hull & Hull LLP, the gala tribute for the Chief Justice of Ontario, The Honourable R. Roy McMurtry, who is retiring at the end of May 2007. The event was held at the Toronto Convention Centre.
Prior to the gala, during the day, a conference was held in celebration and remembrance of the 25th anniversary of the Charter of Rights.
The gala event was co-hosted by the Treasurer of the Law Society of Upper Canada and the President of the Advocates’ Society.
The night was filled with a combination of in person tributes (including from the Lieutenant Governor of Ontario, The Honourable James K. Bartleman, The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, and The Honourable Madam Justice Rosalie Silberman Abella, Justice of Supreme Court of Canada) and those by way of video from various politicians, lawyers, colleagues and friends of the Chief Justice.
Our own Rodney Hull was included with those on the video tribute.
The tributes were a captive and eloquent blend of endearment, high esteem, personal notes and often wit, and covered the Chief Justice’s career as a lawyer, the Chairman and CEO of the Canadian Football League, a politician, his tenure as the Attorney General of Ontario and the Solicitor General of Ontario, his significant role in the patriation of the Canadian Constitution in 1982 and the creation of the Canadian Charter of Rights, and his appointments as, or to, Canada’s High Commissioner (Ambassador) to Great Britain, the Associate Chief Justice of the Superior Court (Trial Division) in Ontario (1991), the Chief Justice of that Court (1994) and the Chief Justice of Ontario (1996).
Believe it or not, towards the end of the evening, the Justices of the Court of Appeal sang a “tribute” to the Chief Justice (prepared lyrics to the music of “This land is our land, this land is your land”).
Before the night was over, two of the Chief Justice’s children, one of whom is a Judge of the Queen’s Bench in Alberta, and the other, apparently an actor/writer/comedian, spoke, or what might fairly be described as a roasting, of their father.
It was truly an impressive evening by and on all accounts, for an inspirational man considered by many to be a nation builder.