Yesterday, I blogged on the September 14, 2011 LSUC CLE program entitled “Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls. This excellent program featured a number of great speakers. The program is being repeated on October 31, 2011, and I highly recommend it.
Another speaker was our own Craig Vander Zee. Craig spoke on the topic of administering an estate where there are claims made against the estate, such as claims for equalization under the Family Law Act, dependant support claims under Part V of the Succession Law Reform Act, or trust claims, such as claims involving jointly held assets, or quantum meruit claims.
Such claims necessarily complicate the administration, and give rise to a number of issues and considerations on the part of the Estate Trustee. Craig’s paper addresses a number of these issues, including the nature of the claim, what procedural steps must be taken to defend the claim, representation and notice to all of the interested parties, limitation periods, and the thorny issue of costs.
Thank you for reading, and have a great weekend.
Paul E. Trudelle – Click here fore more information on Paul Trudelle.
The concept of reviving a revoked will seems clear enough. But what is the difference between a revival and a republication, and why does it matter?
Revival means reactivating a revoked will. Note that section 19(1) of Ontario’s Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act. So an oral declaration that a revoked will is valid does not suffice. A destroyed will cannot be revived, unless the reviving instrument contains a copy or the terms. On the other hand, at Common Law, a codicil referencing an existing will "republishes" that will, furnishing evidence of the testator’s considering his will as then existing. And because the Wills Act, 1837 did not abolish the doctrine of republication, the principle still operates. Both revived and republished wills are deemed executed on the revival or republication date.
An attempt to revive a will that was never actually revoked may have the result of republishing that will at the time of the attempted revival. However, attempting to republish a revoked will not revive a revoked will, unless the acts of republication also satisfy the requirements of a revival (which include the form requirements of the Succession Law Reform Act. Specific uses of the doctrine of republication are discussed in detail in Macdonell, Sheard and Hull on Probate Practice, 4th ed., Rodney Hull, Q.C. and Ian M. Hull (Carswell: Toronto, 1996), pp. 116-119.
Have a good day,
Christopher M.B. Graham – Click here for more information on Chris Graham.
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,