"Avoid A Claim" Blog

This post comes from the Practice Tip column in the most recent issue of LAWPRO Magazine (which will hit the desks of Ontario lawyers in a few weeks). A hat tip to LAWPRO claims counsel Pauline Sheps for suggesting this great tip – unfortunately it is a malpractice claim scenario she sees all too often.

Many wills include one or more bequests to charitable or religious institutions. In spite of the testator’s good intentions, these bequests often lead to claims when there is confusion over which institution was to receive the bequest. These mistakes often come to light only when the estate is being distributed – and they can lead to costly and time-consuming litigation when charities fight over the bequest.

Many of the claims reported in this area could be avoided if lawyers took steps to confirm that the information given by the testator is correct when the will is being drafted.

Often testators will give the lawyer a name for the charity that is outright wrong or doesn’t include an indication of its corporate status. For example, the client says “Niagara Cat Shelter” but the real name is “Niagara Falls Cat Shelter Inc.”

In other situations there is ambiguity about which institution was to receive the bequest. For example, a legacy to “the ALS Society” is unclear. Does the testator intend that the bequest go to the provincial association or the national body?

Similarly, a bequest to St. John’s Church can be quite confusing if there is more than one church with the same name in the region. There can also be confusion if the church or charity no longer exists. For this reason, including an address and phone number in the will can be helpful.

It is imperative that lawyers taking instructions for a will ensure that the beneficiary of the bequest exists and that the beneficiary is referred to by its full legal name in the will. Go beyond the name of the charity and ask for an address and phone number. Cross-check the information provided to make sure the charity the testator intends the bequest to go to is properly named. There are a multitude of resources available to confirm the names and addresses of charitable entities. Many charities have websites, and most are referenced in various government and non-government directories.

Taking the time to check the proper name of an entity and confirming that information with the testator can avoid a potential negligence claim in the future.

A copy of this Practice Tip column is available here.

Cross posted on Slaw.ca

Cross posted at Slaw.ca

There is a fantastic article by John Harvey at page 12 in the October 26 issue of Law Times. (Sorry I can’t give you a public link – unfortunately it is locked up for Law Times subscribers – They can access it in the Law Times Digital Edition here.

While written for Ontario lawyers as it references the Ontario Family Law Act (FLA), the risk issues the article highlights are very relevant for lawyers in other provinces and territories.

The article has some great comments and quotes from Lorne Wolfson of Torkin Manes LLP. The closing quote of the article says it all: “Estates practitioners must be extremely cautious when advising clients with respect to the potential consequences of estate planning techniques in the event of a separation of their clients and/or their client’s children”.

The article advises trusts and estates practitioners to think about the impact of the FLA when creating trusts. Trusts can certainly help with the deferral of taxes, but the FLA can throw some curves into the mix if the marriages of the clients or their beneficiaries end. In the event of a marriage breakdown the FLA dictates what counts as matrimonial property, and by extension, income if the issue of support in on the table.

The article has a good discussion of some of the issues and law in this area. It also makes another key point – estates practitioners shouldn’t dabble in family law – they should get some help from a lawyer that understands and can advise them on the potential FLA issues.

If you are a Law Times subscriber, pull the Oct 26 issue out of your inbox and read this article – it could help you AvoidAClaim.

Cross-posted on the SLAW blog (www.slaw.ca)

As part of a brief endorsement dated November 3, 2009 in RE: IN THE ESTATE OF Evelyn O’Reilly, et. al., Justice D. M. Brown of the Superior Court Of Justice–Ontario provided some useful direction on the form and content of an order in applications to prove a lost will under Ontario Rule 75.02. Ontario lawyers handling this issue on estate matters will find Brown J.’s comments helpful.

The relevant part of that endorsement is as follows:

[2] My only purpose in writing this brief endorsement is to deal with the form of the order.  Since the Rules of Civil Procedure do not prescribe the form for an order made under Rule 75.02, judges see a wide range of language submitted for proposed orders proving lost wills.  In order to bring some uniformity to this type of application, I would ask applicants to submit draft orders using the language recommended several years ago by (now retired) Justice Haley.  The draft order should read:

I declare that the Will of [insert name of deceased] dated [insert date of will] has been proved and that the copy of the Will adduced in evidence shall be admitted to probate as the last Will of  [insert name of deceased] deceased, until such time as the original may be found.

I direct that, subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee with a Will for the Will of [insert name of deceased] dated  [insert date of will] be issued to the applicant(s).

To this language should be added any other orders sought by the applicant, such as dispensing with service of the application, etc.

[3] Judges considering these applications are provided with a template endorsement using this language.  Therefore, in order for an applicant to avoid the delays associated with submitting a draft with different language and then having to submit a revised order that tracks the language of the endorsement signed by the judge, the language I have set out above should be used in the draft order submitted with the application record.

The decision is unreported as of today’s date, but I understand will be posted on CanLII next week. In the interim a copy of it is available here.

This came to my attention via the Ontario Bar Association Trusts and Estates Section’s list serve.