WEL Partners and Hull & Hull experts gather to share insights and best practices
Watch this industry session as a panel of experts from Whaley Estate Litigation Partners (WEL Partners) and Hull & Hull LLP provide some tips, traps, and tools to help identify and avoid errors and omissions that could lead to will challenge litigation or even negligence claims.
Kimberly Whaley, Ian Hull and Jordan Atin identify issues and preventative concepts, while also providing real-time demonstrations and discussing the most recent trends and cases in Canada.
Mallory: [00:00:01] Hello, everyone, and thanks for joining us today. I'm Mallory Hendry, senior content specialist with Canadian Lawyer magazine. And I'm pleased to introduce today's webinar. Child proofing Your Will Recognizing and Avoiding Common Traps for Solicitors. Today we'll hear from presenters Ian Hull, co founding partner of Hull & Hull LLP. Kimberly Whaley, founding partner of Whaley Estate Litigation Partners. And Jordan Atin counsel at Hull & Hull. Over the next hour, these experts will explore the tips, traps and tools to help identify and most importantly, avoid those errors and omissions that could lead to will challenge litigation or even negligence claims if time allows. At the end of the presentation, the panel will participate in a question and answer period. So be sure to type any questions you have into the Q&A box within the webinar software. I'll turn things over to our panelists now to begin the presentation. Take it away, Kim.
Kimberly: [00:00:53] Thank you so much, Mallory. And hello everyone, and thank you for joining Ian and Jordy and I. Today we're going to discuss a few recent trends impacting will-making in Canada. We're going to go through some common traps to avoid when drafting wills. We're going to give you some tips and talk about the interplay of technological innovation, including a live demonstration of estate planner. So with that, let's get going. Contextually, it's important to know some of the recent trends and impact we're making in Canada from recent polls and then decisions post-pecore regarding the doctrine of resulting trust and beneficiary designations. Some updates on electronic will-making and digital asset legislation. So polling question number one. Great. So hope everybody has had an opportunity to do the poll. Recent surveys have helped inform us some public perceptions surrounding will making in Canada in 2018, and Angus Reid poll reveal that one half of Canadians say they have no will in place and only one third say the one they have is up to date. And its exposed pool conducted in April 2022 on behalf of RBC Royal Trust, revealed one in 518 to 34 years of age, and one quarter of those 35 to 54 say they don't have enough assets behind to do a will. One quarter of Canadians know they will because they don't know where to start. Among those with the will, more than one half aged 18 to 34 and one quarter of those 35 to 54 wish to include charitable giving. And that's compared to just 13% of us. And nearly one half of those 18 to 34 are more likely to direct their executor on how to handle their digital assets after death, compared to just one in three over 55. 19% of those 1830 to 34 and 23% of those 35 to 54 would prefer to facilitate their will online. So that is what the polls are telling us. So so now let's move along to some of our updates following the court decision in 2007. We know lots of cases have followed pecore. The law was unclear on whether the result doctrine of resulting trust applied to beneficiary designations, and it was unclear whether assets distributed through a beneficiary designation were considered gifts. Or would you be held in a trust by the beneficiary for the benefit of the estate of the deceased? In 2021? A series of decisions in Ontario and Nova Scotia and Alberta have now confirmed the doctrine of resulting trust does not apply to beneficiary designations, and the 2021 Ontario Mac and Mac estate held that a beneficiary designation made on a rift account was testamentary in nature, and as a result, the as a result, the presumption of resulting trust didn't apply. And this line of reasoning was also followed in the Nova Scotia Supreme Court in 2021. In Fitzgerald and Fitzgerald, and by the Alberta Court of Queen's Bench in 2021 as well in the decision of Robertson. Robertson Speak to that more in our paper. And so now over to Ian.
Ian: [00:04:50] Thanks, Kim. So I think we're. Oops. My slide pressing is not been. There we go.
Kimberly: [00:04:58] One more. One.
Ian: [00:05:00] Oops. Six. So what we're trying to do today is talk a little bit about the substantive issues to watch out for in some of the historic and in court trends. But in the second half, we're going to talk about fundamental implementation of avoidance steps that we can consider. But the reality is of our future is, of course, is that the digital is becoming increasingly the digital age is becoming increasingly apparent, and there is much greater focus on digital assets. In 2021, B.C became the first Canadian province to authorize prohibiting electronic wills, and then under the Wills Estates and Succession Act of B.C., an electronic will is valid and it has to have three components one that it's recorded to, that it's stored electronically, and three that it can be read and and finally, that it's capable of being reproduced in a visible form. So P.E.I. is creating in 2022, P.E.I. is creating it. That legislation that define it. Saskatchewan has passed similar legislation in 2020. New Brunswick is considering whether to do it, and I think Ontario is close behind based on some of the anecdotal discussions and comments of this current government. So we do have at least some recent assistance in the legislation, and we have. But I will say probably since Roy McMurtry, this this particular Attorney General, Doug Downey, has focused on bringing some fundamental reforms. And one of the reforms that has recently been added in Ontario is Section 21.1, sub two, which essentially allows for a validating provision under the legislation. And we put the actual clause up there to give you some of the parameters. But there are no reported cases on this. But the draconian situation where a perfectly executed will with two signatures was was was the minimum standard under the legislation has been has been replaced with substantial compliance. So close is close enough sort of thing and and so that's a big trend. And then I think as I say, I think this government's looking pretty seriously at the electronic world trend that's going across the country. So that's important to kind of keep on our on our radar because, of course, looking at the standard of care of a drafting solicitor gives us the sort of parameters of what the courts are going to expect. And this is the old 1986 decision of the Supreme Court of Canada Central Trust and Refuse, which set out the standard of care and describes it as having the reasonable, scared and the reasonable skills, knowledge, so forth, of a prudent solicitor. And the question there, of course, is not that where a lawyer makes a mistake or an error in judgment or was ignorant of the part of the law, the question is, was a reasonably competent lawyer practicing in the same community at that time in question. And this isn't about perfection, and that's a relief on a common law basis. I can tell you, though, from a practical standpoint, the judiciary, it seems to me, is expecting closer to perfection every day of our practice. So what can we do to get ahead of that? And we're going to talk a little bit about that today.
Kimberly: [00:08:32] So and we know all too well that this duty extends to intended beneficiaries. It's been over two decades that have passed since the high watermark decision of White and Jones, which established the ability of disappointed beneficiaries to sue drafting lawyers for negligence. Courts across Canada have adopted that reasoning in that English decision, and so it's firmly established in Canadian jurisprudence that a third party beneficiary does have standing to bring a claim in negligence against a drafting solicitor despite any privity of contract. A lawyer's obligations were summarized some time ago in Millican and Tiffan Holdings, which requires a lawyer to be skillful and careful to advise the client on all matters relevant to the retainer, as may be reasonably necessary to protect the interests of the client to carry out the instructions. By proper means to consult with the client and all questions of doubt which do not fall within the express or implied discretion that is left to a lawyer and to keep the client informed to such an extent as may be reasonably necessary according to that same criteria.
Ian: [00:09:52] So. Thanks, Kim. I think we've got a good understanding of some of the substantive common law parameters that we're expected to perform, at what level we're supposed to perform at as a state lawyer. Let's get a little more granular. And the first thing, of course, is we're expected as the front line service provider to test testamentary capacity. And I know when I was a young lawyer, it was a bit of a daunting obligation in the sense that what do I know, I went to law school because I can't do math and I wouldn't have gotten any medical school in the world. So what can I do to help a client with the question of testamentary capacity? Well, of course, it's a legal determination. So what we've tried to do in the work with great leaders like Dr. Ken Shulman and others who are in the medical community have helped us really refine in plain English some of the things that we can do to make sure that the capacity has been properly tested and and so we can tick the box on things like capacity is a decision that is time and situation specific. There's a presumption of capacity unless there's a unless it's rebutted. So determining whether someone is capable of deciding this, this obligation, it's the duty of the lawyer to assess the client's capacity. So if that's our duty, then and we've already heard about what our standards are, which are extremely high, what are some of the things that we can do to really make sure that we can identify that we have met, that that onerous obligation as lawyers? And I guess the next slide. Thanks, Kim. Is it sort of sets us up because, of course the banks are good fellow decision is I always describe it as to know and understand the nature and effect of the of your of your assets and to understand those who would properly enjoy the bounty. And as it goes on to say and understand the claims of those who might expect the bounty and the final part of it and one that I think certainly was teased out with the cooperation of the medical community, was to make sure there's a rationale behind the instructions. And that rationale, of course, is something that is needs to be both determined and documented. So this old 1870 decision of the banks and Goodfellow actually gives us the very core parameters. And what I do is I take my notes and I literally will go through those core four components of the test nature effect, extent of the property, who should benefit and what's the rationale. And I work my notes around those considerations. A solicitor must, of course, be alive to the issues of undue influence and fraud as well. And that's one of the more difficult tests because, of course, in our next slide, we show some of the considerations there, because undue influence is almost always done in secret. It's very hard to prove. So watching for the red flags that would give us pause or cause for concern. And of course, the classic is who's in the room test and who what other individuals are around the testator. Are they attending to is there any threatening suggestions going on between, say, a son and a mother? And again, a lot of these issues of undue influence come out of your careful inquiry as to the rationale. So it's not easy, but careful notes and careful leading non leading questions can also tease out the issue of undue influence.
Kimberly: [00:13:57] So the divisional court in Tate considered the following factors. I don't know if this is on the next slide or not. Ian. No, it's not. So we'll just leave that one up. Considered factors to which constitute significant evidence suggesting that the will was a product of undue influence. So in the paper you'll see we set out the indicia in Tate and it includes increasing isolation of the testator, including whether or not the testator has been moved from their usual home or to a new city. The dependence level of dependence on a beneficiary, any substantial pre death transfers of wealth from the testator to that beneficiary. The Testator's failure to provide again, Ian spoke to this rationale for leaving the entire estate to the beneficiary and excluding others who would expect to inherit ordinarily the use of a lawyer that's chosen by the beneficiary and previously unknown to the testator, this this increasingly seems to be happening a lot the beneficiary conveying instructions to the lawyer. And we're also seeing this more prevalently the beneficiary receiving a draft of the will before it's executed, where the beneficiary took the testator to the lawyer to have it executed and where there existed documented statements that a testator was afraid of the respondent.
Kimberly: [00:15:26] So that's what happened in state court said it's imperative that the drafting solicitor conduct thorough and fulsome interviews, asking probing questions while recording their interactions, noting any suspicious circumstances or signs that something isn't right. And so then we come to Rosenberg Estate and Black And in that case, six factors were put forward and considering whether a lawyer acted reasonably in the preparation of a will. This was followed in several cases, but in McCullough and referred, which was a disappointed beneficiary situation. And the six factors include, number one, the terms of the lawyer's retainer. Always look at the retainer, for example, whether a precise timetable was agreed upon between the lawyer and the client, whether there was any delay caused by the client, the importance of the will to the client, the complexity of the job in that the more complex the will, the more time may be required and any circumstances indicating risk of death or onset of incapacity. And finally, whether there has been a reasonable ordering of the lawyer's priorities in the retainer. So what are. Ian, do you want to go through some of the things that drafting solicitors should be aware of?
Ian: [00:16:48] Absolutely. And I just hearken back to that. Rosenburg And black decision. My great friend Harry Richey was the winning counsel in that, and it was a one of those cases that he was on defense side of it. It really is an eye opener as to the kinds of allegations that can be sent across the bow when we're the drafting solicitors. And these six steps are crucial elements of where the court is going to determine if we fell short. So being aware of issues that may arise in that, of course, is is one one classic is the scenario where you've got a husband and wife retainer. And in Ontario, we have rules of practice. Our ethical rules of conduct actually speak to this issue. It is a common retainer scenario. And what is the lawyer obligated to do in the classic circumstance, of course, is is that someone might come back later. One of the two spouses comes back later and asks that lawyer to either continue to act for them and exclude their husband or wife or do something where it is counter to the joint retainer. So when we're doing these situations and Jordan and I can talk about this in a minute on some of the implementation, setting up the retainer agreement is vital. And often when we're doing our will planning, we don't necessarily we're trying to be efficient and we sometimes miss the action, action step of creating the retainer agreement in the retainer agreement as well as this, that I always make it clear that there are no secrets as between husband and wife. So if I get a call in five years from one or the other, I have already got in writing that I can rely on in my retainer agreement and my verbal assurances that I cannot take single instructions from one or the other. Suppose so. But if we're in those situations, of course, there's always options of offering to have the spouse seek independent legal advice. And then, of course, considering some of your fiduciary and ethical obligations at that point in time. So the husband and wife retainer is crucial. The second part of that, of course, is second. Second relationships. And what retainers do you want to accept there or not? And of course, it gets even more complicated because of that. In some council, I have a practice of saying, Look, we're not going to even act on second spouses. Retainers that each spouse has to get their own counsel. Another common drafting concern, Kim, of course, is the impact of no contest clauses. And no contest clauses are something that we as litigators, see a fair amount in our practice. And it's as you as the slide identifies an interim clause, and this is a condition that that is imposed by the will maker, that if someone who's a recipient under the will challenges the will, they will lose their gift. The drafting of it needs to be done carefully because of course, if you're going to put in an interim clause, often you want to have enough incentive in the will for that potential beneficiary who would challenge it to not want to challenge it. If you give someone a dollar in their will, you can be pretty sure the interim clause isn't going to have much of an effect because they're only on to buck. But if you've given them a significant gift, it makes it even that much more, practically speaking, difficult to challenge. But the decision in our paper, the decision is all we've got to pull coming up here. I'm sorry, did your poll come up?
Kimberly: [00:20:40] Yeah, it's just a little bit early. That's okay.
Ian: [00:20:43] That's okay. The last I just last three. The interim clauses, they work kind of they're a useful tool. They're a threat to litigation when it when it comes out later and the legacy and the test in that and that decision talks about the legacy must be comprised of personal property or a mixture of real and personal property. And the restraints on it cannot be against public policy and those sorts of terms. So it's a tool that, if drafted properly, can have a profound effect on managing tension and a will challenge.
Kimberly: [00:21:21] Right. So we've already had our polling questions. So I'm going to. Now talk about what our insurer provided by way of a list of the main categories of estate claims. So the leading malpractice claim against drafting lawyers is inadequate investigation. Communication issues are the second leading type of malpractice claim. Drafting solicitors obviously must take steps to avoid these kinds of claims and can by ensuring that the client and lawyer both understand what the objectives of each other are and the retainer. The third leading will an estate negligence claim represents errors of law. These claims usually characterized by things such as the lawyer not being aware of key related planning objectives, maybe under the Income Tax Act and not providing or obtaining appropriate tax advice or drafting a will involving sophisticated estate planning without having the necessary expertise and failing to have documents properly executed. So time management related issues are the fourth leading cause of negligence often brought where the solicitor misses. Deadlines doesn't do a will fast enough, misses the six month deadline for making elections afterwards in the context of an administration. And then the remaining claims involve clerical, clerical and delegation errors, as well as conflicts of interest in an our retainer. One of the cases that we looked at in preparation was the Geluch estate. It's it's an example of a drafting solution for failing to comply with the basic requirements for a will. And in this situation, a Testator's brother and niece met the drafting solicitor to update the Testator's will and add that niece to the Testator's investment account as a joint account holder. That drafting lawyer did not meet with the testator privately to discuss the matters. There were a series of emails from the Testator's brother to the lawyer providing instructions on what they would like to have done, as opposed to what the testator wanted to have done. The testator and her will was bequeathing $900,000 to various charities. At no point did the solicitor point out that in doing so, she was disposing of over half of her estate in that way. And while the court was satisfied that the testator was capable of making choices with respect to her testamentary dispositions in January 2016, it was not satisfied that she knew or approved the choices that she purportedly made later. And in another decision, which is just an earlier decision. No the Daradick and McKeand estate. The drafting solicitor took instructions from a testator with respect to her will, but during the meeting the testator instructed the solicitor that her residence was to be gifted to a family member. The lawyer wrote the instructions on the reverse side of the paper he was writing on, but then didn't transfer that message to his assistant. The solicitor's assistant didn't see the note prepared the will without reference to that bequest, and the court summarized the possible courses of action, which included suing the drafting lawyer and negligence or the estate for the amount of money and time that the applicant has provided to the mother and the matrimonial home or applying to the courts for rectification. And that's what happened here. Counsel opted to proceed only on the issue of rectification, and the court held that it could delete or add words to a will where the word or words were omitted, but also where an incorrect word or words appear. And the court found the error of the solicitor could and should be corrected in those circumstances. So what about risk management tips in?
Ian: [00:25:50] Yeah. So, Kim, what, we're Jordy and I are going to go through with you as well or some practical implementation of the following Law Pro is a tremendous resource on so many levels. And one of them is of course they have a lot of data and their data is clear. Some of the things that are driving the negligence claims, one of them, one of the main ones is that the will does not adequately reflect the instructions. All right. So let's we're going to talk about with Jordy in a minute about how we can fix that use of checklists highly recommended by law pro in terms of avoidance. And then of course, that with that, of course is we've already mentioned was probing questions. Hillary Laidlaw is described in her paper recently. The lawyer needs to probe and verify in respect of the instructions. And then finally, Opera and law suggests pretty strongly as strong as they can avoid acting for family members or friends. And that's brings its own problems. So, Kim, over to you to talk about winding up before we move on to the Jordy part of this.
Kimberly: [00:27:09] Right. So it goes without saying that a lot of these negligence claims could potentially be reduced by using technology. And we know that from other apps and technological usage that we use almost every day in our in our personal lives. Estate planner is a program already used by thousands of practitioners to assist in just that, reducing the likelihood of common errors. So now is a perfect time for Jordy and Ian for you both to do your demonstration and tell us about the estate planner platform.
Jordan: [00:27:48] Can I just first of all, before you jump in on that, Ian, just look at that slide, which is before we get to solutions. I mean as you've said, the problems are in you know, they're getting bigger, certainly. I mean, I'm sure both of you have seen how the claims against estate lawyers and I we were talking to Judith Straczynski of Law Pro recently at a seminar, and the claims against lawyers in estates are going like that. And the claims against lawyers in real estate are going down. Well, that's because, of course, technology. One of the reasons is technology is used in real estate to make sure that title is passing properly. And claims against estate lawyers, which is ever increasingly complex area of law, are increasing because typically we're doing everything manually in our head.
Kimberly: [00:28:50] I think the latest stats on that, Jordy, were 14% of all claims were estate and trust claims.
Jordan: [00:28:57] Yeah. And that's a huge increase over 20 years ago. And guess what? That's going to continue. There's no doubt of that with the change, with the demographics and the wealth transfer and the complexity of of estate planning. Even will drafting at that level as well?
Ian: [00:29:17] Yeah. And we've got like as you say, this visual is profound because inadequate investigation and communication are too overwhelming aspects of where the errors are being made and law pro level. And those are two things that can be resolved. And I think errors of law is more complicated. But the two main we've got two main components of it are things that can be fixed. So let's talk about that, Jordy, in terms of the best practices to start to take the steps. Now we're just going to happen to use the estate planner for some demonstration purposes. But that's not to say this is the only way to do it. And some of the steps that we're going to talk about are enhanced by technology tools, but they're also used every day in our practices, with or without the actual tools. So starting with the first thing Jordy is, of course, and one that this comes down to improper instructions comes down to all the core elements of these claims is who is involved and the family tree. I can't tell you how many times I speak to young lawyers in my office saying, Please, just show me the family tree first, because if I don't get a handle on that, I haven't got the basic data to create any estate plan or any litigation or administration. So, Jordy, what are your thoughts of that first starting point?
Jordan: [00:30:47] Well, just about family trees. I mean, when we take instructions the old way and write down, oh, I have this sibling and this sibling and this sibling and this child and this person has that person, what are we doing in our heads? Well, we're creating a family tree because that's the only way we can actually relate everybody. And and it's so powerful to see visualization. If there's one thing that I would say that has to change in our practice for the client is that we have to use a visual approach. You know, Ian, can meet, we've been using the same technique of interviewing clients as they did 300 years ago. It hasn't changed at all. And it's it's we're asking our clients to do something very difficult. It's not so difficult to us to talk about estate and figure out where's where things are going and who's in the family and all of those things. It's pretty easy for us because we do it every day. But imagine a client who's sitting there and we're describing things verbally and they're trying to figure out what we're talking about. It requires a great deal of cognitive skill to take issues that are abstract and and understand them. And we're demanding that of our clients, and we're even demanding that of ourselves when we talk about a family rather than showing it to us, you know. And so that's I think the overall theme is that we've got to do better at visualizing whether you hand draw it out like many people do, or you show it to the client on a screen, whatever you do, really seeing it is so much more powerful than hearing it.
Ian: [00:32:34] And the data collection too, is and this is coming back to checklists. When you're creating your family tree, the power starts, but then you can start to get the devil's in the detail. And this illustration is here to show you we've got identifying who's a US citizen, we're identifying the gender, we're identifying any offspring of them, the nature and extent of the relationships that are within the family without getting any further into it. And and most importantly, we've got it on the screen or on the whiteboard or whenever we're talking to our client. And we spelled out the names and we Marjory Simpson's with, a Y and that matters on in the wealth drafting and you get it in the first time, correct It stays that way if you use technology.
Jordan: [00:33:24] And from your your point of view Kim as a litigator, how many fights and disputes are caused by the special circumstances of, you know, of the particular family? And and we rely on our memory to to do this. But really, this is the special circumstances. That apply to any person that we're talking about, you know, estrangement and disability and relationship difficulties with other people. And these are all things that really affect they're so crucial to what we do. And often, you know, we just say, oh, anybody know, we don't have a formal way of ensuring that we're collecting that data and that's inadequate investigation, right?
Kimberly: [00:34:13] Yeah, I agree. And in fact, in any litigation file that we have, we do like my first my first questions at a meeting are help me understand the family tree. And sometimes there's much frustration by clients because they want to just want to get move on to the nitty gritty of the the consult. But the family tree is how I start to formulate who who, whose rights we're talking about and how they interplay with everybody as everyone else. So and what I've come to learn is everybody's concept of family and who our relatives differ. And so being that from a legal perspective, biological perspective or otherwise. So it is very important to to get the players down right and their proper legal relationship.
Jordan: [00:35:03] I'd say that I've had, and I'm sure many of us have had situations where somebody describes somebody as their child. And so when I put it in the family tree, they say, Oh, no, they're not really my child, they're my spouse's child. Well, that's kind of important, you know? And as are these special circumstances, imagine drafting a will and excluding somebody and not, you know, not recognizing a that you've talked about them. B, y you're excluding them, you know, not dealing with disabilities, not dealing with U.S. citizenship and residency. I mean, this inadequate investigation and JUDA at law process that in fact, we're the only area where inadequate investigation is the major cause of claims against us. And that's we're not collecting. And it's a it's a painful experience. The technology can help, you know, because the client can do it digitally and go on a digital questionnaire and it's secure and all of that. But it's still a pain. But you know what? It's actually the most crucial part of our job is collecting the data. And not just the people, but the the assets are so crucial, you know, looking at what assets are out there. That's the other part of of the inadequate investigation, you know, is making sure that that we know what's out there so that, you know, maybe it's irrelevant. Maybe there's a chance that that we might get lucky and our lack of data collection is actually irrelevant. Well, then consider yourself lucky. But in most cases, you need to know how things are owned. Ownership is the most important question we can ask about about assets is the value to some degree, but really ownership, because ownership determines whether your client's will is going to apply to that asset or not. And so, you know, that's another crucial thing when we talk about inadequate investigation, not knowing true ownership is, I would say, number one on the list.
Ian: [00:37:17] And I see you've got some detail on the screen here and with it, some with values and some income tax comments and so on. That takes you to the non negligence piece in some ways because you want to understand the basic values. But you also this is where clients really get a sense of what is involved and how are we going to actually distribute these assets. And that's that's a big added value. I mean, with the practice of law becoming more and more commoditized and wills can be done online and all of that, where are lawyers going to be separating from the wheat, from the chaff, so to speak, is we start to add value to the experience 100%.
Jordan: [00:38:06] I mean, right now I'm just going to give you an example of another, because I know Kim, we talked about precor, we talked about those kinds of issues, clients, not children not being treated the same things like that. You know, here's an example where and the other one where I think really crucial was where the client the lawyer, the judge felt that the client had capacity but didn't really understand the implication of their instructions. Well, no doubt that happens very frequently when all we're doing is communicating verbally. All we're doing is talking and not showing. Whereas the new the new way of doing things and the future and the present, to be honest, is about showing so that clients can really understand the impact of certain decisions, you know, in this. Sorry, go ahead.
Kimberly: [00:39:08] I have a question. So when you use your program, do you have this like a live sort of you're using it in real time with the clients so they can see.
Jordan: [00:39:22] Yeah, I'm doing it. I mean, that's the great thing about it. It's a collaborative approach and, and really the client and the lawyer are on the same page. That has never happened before. We, you know, we take instructions. I'm sure most of us have private notes that they take. Right. And on a on a piece of paper that the client doesn't see. And so the client actually has no idea if what they're telling us or what they think they're telling us is what we're hearing. Whereas, you know, if a client says to me, yes, I want my son, Benjamin, I'm going to make I've made him joint on this home because that's what my advisor tells me to do. And I'm going to give my cottage, which is pretty much close and value. I'm going to give that to my daughter. You can demonstrate the impact of those decisions live and and with the client and and they can say, Oh, well, so what's left? You know? Well, how much is left? Well, there's, you know, only $2.2 million. Oh, I didn't realize that. You know, I mean, think of the power of that just from the client experience that is so crucial. Not to mention the other part of it, which is the negligence part. But but telling somebody and I can show, you know, if Jennifer was my client, I could say to Jennifer, here's your will, right? This is what your will looks like. And imagine that's way better than the client leaving that meeting, hoping that you got it right and you hoping that you got it right. You're saying, Oh, Benjamin's getting the home and and Sally's getting the cottage and the rest is getting split. Oh, I didn't realize that. Oh, yeah, okay. I didn't. I didn't mean that. I meant that they should take it as part of their share, really, is what I'm talking about. So that's really what. What, what this is about. It's about demonstrating information to the client in a visual way. It's hard to argue that the client didn't understand the implications of what they were doing in their will when they've seen it in a picture.
Ian: [00:41:32] And just to supplement that already, too, is that note taking is is the the I would say the primary attack on a lawyer is the nature and extent of their notes. On the litigation side, I think Kim and I would agree on that. When you're challenging a will and to have had the visual discussion, to have verbally described it and then to send this document to the client is about ten times more comprehensive than Kim, You and I would have seen in any will challenge in the last 30 years. And it's going to make it much harder for an attack on that challenge when you can say these are the sorts of things we went through and this is the document that the client received. And by the way, this is pretty easy, easy to understand. And that comes back to whether you use this program or you use whiteboarding. I mean, you and I, Jordy, would do the most do this through the whiteboard system before. But we were continuing to visually show them, take a screenshot of that shot, send it to them and leave them with not a 20 page reporting letter. That's exhausting and miss and can't be comprehended, nor a 30 year or 15 page will that they definitely don't understand. These are the sorts of tangible things and that comes back to protecting ourselves. And that's when someone says to me that you've done an inadequate investigation. I say, this is a very adequate.
Jordan: [00:43:00] And this goes to communication. I mean, ironically, ironically, lawyers, you know, well, not put it this way, lawyers consider we consider ourselves to be great communicators. That's how we make our money. That's how we're trained. We write really well. We speak well. Whatever. Guess what? The number the number one claim against us is inability to communicate properly in. And so communication issues actually drive most claims. Well, they what they're talking about when they talk about communication issues is just this that we think we're explaining, you know what's going on properly and the client's kind of nodding. But again, it's just words in the air as opposed to a picture. And I can tell you from personal experience that when a client sees a picture. The light bulb goes off. Oh, got it. Of course they do. Right. But we're treating our clients like we're not treating them right. We're requiring them to do a lot of hard work. And that's where there's the gap between, you know, the client having capacity but not understanding the implications of their will.
Ian: [00:44:15] So, Jordy, how about this, though? It's so hard when you're taking instructions and even using tools like this or whiteboarding or taking proper notes, catching your mistakes on the fly. Yeah. And what what do you do about that? And what are some of the things that you've done to to watch out for what are going to be mistakes that could really hamper an estate plan on the fly?
Jordan: [00:44:40] So if you imagine yourself right now, the way you're doing it, if you're not using any kind of technology, is you're sitting in that client meeting and you're computing things in your head. You're taking all the data that the client is giving to you. And your knowledge and experience and all of that, and you're trying to remember everything and correlate those items to make sure that you don't miss an issue. Well, that's not that's tricky. That's. It requires a lot of work. And we're humans, so we make mistakes. What software can do? Many different types of software do. This is to take all the data and cross-check it against knowledge and and then pop up with just you probably remember this, but. And and that's what as an example estate does is it's looking at all of this information that we just did for Jennifer Craig and it's saying, yeah, the client instructed you to give the cottage to Sally, but she's not the sole residuary beneficiary. So you better consider the tax implications of that gift and deal with it. Maybe make her pay the tax, maybe document the fact that that's going to be okay, that the residue is bearing the burden of that.
Ian: [00:46:00] So, Jordy, can I just stop you there? Because this is a great illustration that Kim, you and I see this all the time, and that is a gift like the cottage going to one one of the children and no investigation into the funding of the tax liability, which is going to get paid out of the residue. And in your situation, Jordy, you've got an opportunity. You're getting reminded of it there, but you also have an opportunity to make a note of it right on the spot and say yes. Oh, geez, I forgot about that. That's a good point. But I talked about it with the client on the on the spot. That's where on the fly mistakes don't happen. And I think, Kim, you would agree that in your practice you see that the tax burden gets dropped somewhere on an unexpected basis. If you if you haven't talked it through, it might be that that's the right answer. The residue pays it because of whatever other reason, but at least you've covered it. Would you would you have that experience at all?
Kimberly: [00:46:55] Yeah. And there's a fight about it because there's been some discussion between the deceased person and the various family members. And one person understands it to to the intention was to deal with it one way. And the will doesn't suggest that or the law doesn't follow that way. And there's a big, big dispute about it for sure. I have a question about your program in terms of reporting letters. You've got your will. Obviously, you've got this database of information, what gets generated, if anything, from your program to the client.
Jordan: [00:47:31] Right. So, I mean, it does a reporting letter which, you know, law pro when you guys have both acted for law pro and you know that when there's a claim against the lawyer the first the first question that law pro asks they asked too many of your questions one is there a retainer and two, is there a reporting letter? Right. And so those key documents, obviously, you know, software can generate those documents and it can look at the data and say. For. You took a I told you that there were problems with that. And the reporting letter covers that off, Right. You told me you were giving everything to this person with no strings. I told you that that may cause it. Whatever it is. That's what. That's the power of data. That's the power of leveraging data, which is what software and technology does. It gets We use data to do so many things. And so, yeah, of course, it's going to generate a reporting letter about that.
Kimberly: [00:48:39] But what's your point to your point about pictures? And just so people who are not familiar with this technology, Jordan, you've got this reporting letter that's generated. Is there a pictorial form of that that goes along with it or no?
Jordan: [00:48:55] Yeah, there's the picture of the plan, right. Of it's a picture of their will. A will is we describe it as a funnel with filters and a bucket. That's what a will is. That's how I describe it to my clients and that's what the picture shows. And, and, but one of the key ways of avoiding that problem, of course, is checklists. And E and you touched on this earlier and every insurer would talk about this as well is checklists. Well, the reality is unless you walked into a meeting with a checklist that was this big, it wouldn't you don't know which checklist you need until you get into the meeting. And what software can do is it has contextual checklists. Here's a situation where they told me, give the cottage to Sally. I automatically know, Oh, do I want to apply that to another cottage? If they sell this one and buy another one, that's something that you might not remember to check, you know? Then there's the whole idea who pays the income tax, who pays the probate tax, who you know is that going to be paid by the estate? Is that going to be paid by the beneficiary? Those are. And what about gift overs? Those are all every kind of gift has its own specialized checklist to make sure that we don't get into the situation where we've got a warning that each state gives us that we haven't. We've got an income tax burden. Right. And so that's the whole point, is that, again, leveraging the data allows us to have contextual checklists that we we can avoid making mistakes that we might make without that.
Ian: [00:50:38] And Jordy, you were just I do want to we've only got 10 minutes left, so I want to just at the last 5 minutes, talk about what gets generated with the data, because, of course, it's all well and good to have these these data points being inputted. But what actually can get generated we're going to talk about in a minute. But you've you're doing something which probably you want to talk about. But. No, no, no, Go ahead.
Jordan: [00:51:03] I was just going to I was just going to say that once you have all that data, I mean, one of the obviously we've talked about the planning side and the inadequate investigation. Then there's the errors that occur because of drafting. You know, we're not the greatest at avoiding mistakes in some ways, you know, easy mistakes. In some ways, technology and computers are way better at doing things than we are and avoiding mistakes. And and one of the things that I'm just going to generate a will here and whatever I put and this goes back to your case, which is a common case where the document did not reflect the instructions. Easy to happen in. You've seen lots of those cases. Well, that can't happen with technology because the only thing that can get generated is what was put what what, what the instructions were. And you've confirmed those instructions visually with the client and you know, it's not going to miss anything. And so what what software can do in each state specifically is it's going to generate that exact will spelling all the names right, and it's going to also draft it properly. And remind us we forgot to put in a pin here. You know, here was the gift. Here was the transfer of to Sally and here's the income tax burden. So it's doing all that and it's getting all the numbering right and it's getting all the cross-referencing right. And if there's something missing, it's going to warn us. And the other great thing and it's just a word document, so it's fully editable.
Jordan: [00:52:42] You can paste in your own your own clauses if you know or whatever you need to change. But it's also going to warn us if there's something about like confirm with the client whether the estate is to pay the cost pending transfer. And it also generates a great guide. And this is something that I would encourage you if you're doing it manually to do, is a guide to the client, understands what's in their will, because we can say all we like about how we send them the draft in advance. No one, including some lawyers, understand, you know, no client understands what's in there will by reading it. And and so that's why pictures are so important. But but it's the idea of make it better for the client. We're we're going to have problems and you can maybe speak to this but we're going to have problems as a profession if we don't if we don't make things better, easier for our clients. I mean, we can't rely on on on historic. Well, you need a lawyer for this, and this is how we do it and this is how we've done it For 300 years. We've met with clients in a meeting room, talk to them, taking private notes. That's how you do it. Well, that's not going to that's not going to be the way we're doing it. If we're going to stay in business. And maybe you can speak to how law pros or law society is looking at it as well.
Ian: [00:54:06] Yeah. No. And I think where I find the most telling is, is that all you've got to do is ask a young couple to do their will. And today is as opposed to I did 20 years ago and as you say, it was a notepad and I hand it to my assistant to figure out my chicken scratch and figure out put in the clause here and do that sort of stuff. You know, they're not going to tolerate it. And what they're not tolerating is that society is going to start to look at us as being in an improper and inefficient step in their road to estate planning when so much can be enhanced in their lives. And one of the little things that gets enhancement is, of course, demonstrating where they're going to save on tax and a primary and secondary will and that kind of basic planning where you can identify that. And I think it's got to be we're getting close to the point where it's going to be the part of the standard of care is just to have considered using a secondary will. And, you know, if we don't, we may be exposed to a claim, but we need to do that efficiently and cost effectively too. So, Jordy, what about the secondary? Well, planning.
Jordan: [00:55:20] Well, the great thing with technology is you can create a second in multiple wills in the exact same time, you know, 5 seconds as you can create a single well and it's going to do it right and it's going to make sure the definitions match and it's going to avoid common errors that we rely manually on for double checking and all of those things. And we can demonstrate to the client with real numbers like, you know, what should I do, multiple wills. Well, how much will I say, Well, you're going to say 15,000 bucks. Do you want to do it or not? Again, we just talk in generalities. But but again, it's, you know, yes, things change. Yes, the value of companies change. And you might not say 50, but as long as they have some context for what the advice we're giving them is, it's important.
Ian: [00:56:05] And I think we're so behind in so many other professions. The accounting profession has survived on its promise to save money on their whatever steps they take and to guide you through a complex process. Well, we're making is complex. And in fact, you can, if properly, in most circumstances, save money if you go see a lawyer. So those are two pretty good bonuses. But Kim, did you want to add did you have any other questions before? We're almost 4 minutes out from winding up, so I just wanted to come back to you and check in with you.
Kimberly: [00:56:38] Yeah. No, I was just going to ask Jordy when the estate litigation one was coming out.
Jordan: [00:56:43] Well, we asking you, we use the family tree on the estate litigation side, and we also use it to show judges what the distribution of the estate is in a picture. Because judges are like the rest of us. They like they're visual learners, they're visual communicators. We all are. And and so visualization, a summary of a picture, what's the will do is what the will does. And so that's the idea.
Ian: [00:57:12] Absolutely. All right. Well, look, I think what we wanted to cover today, we've accomplished and then some of your help on this last part of really focusing on what are the we've talked about, what are the practical implications of these errors that we need to prevent and where are the tools that are that exist? And you've described to us obviously using technology, but you've also described to us using manually or other other steps to to enhance and avoid the kinds of things that Kim talked about with me in the first half. What are the things where are the claims coming from? We identify that and how can we avoid having those claims come our way? I think we've started to accomplish that too. So I know this is something that we could probably talk for much, much longer and many more seminars on and we might have to do a part two because we haven't only scratched the surface of of solutions. But Jordy, thanks for your time and I'll send it over to Kim to wind us up in the last minute or so here.
Kimberly: [00:58:17] So we've tried to answer some of the questions incorporated as we've gone. There's a few remaining, and as Ian says, maybe we have to do a part two for all of the questions, sorry for for the answers that we didn't get to. And thank you for joining us today. And thank you, Ian and Jordan, the estate planner is always really insightful and I think it's such a fantastic tool. And thanks, everyone.
Mallory: [00:58:43] Thank you, Kim. I'll just echo Kim and thanking everyone. Thanks to the panel for sharing your insight and expertise and to everyone in the audience for joining us today. Keep an eye out for more upcoming webinars and enjoy the rest of your day. Thanks so much.