Why you need an estate lawyer

Here is a primer on what an estate lawyer in Canada does, why a person may need one, and the skills to look for when hiring an estate lawyer

Why you need an estate lawyer
Leaving an uncontestable will can require the specialized talents of an estate lawyer

Updated: 04 Apr 2024

You might wonder what will happen to your properties after you pass away, or what the future of your family will be like.

To get ahead of these concerns, an estate lawyer is there to provide solutions. Estate lawyers counsel clients on last wills and estate plans and anticipate problems before they even happen.

In this article, we’ll go over what an estate lawyer does and how they can help you. Lawyers can use this article as a client education piece. It’s also for law students and new lawyers who might want to specialize in estate law.

Why hire an estate lawyer?

There are a few reasons to hire an estate lawyer. They can help with:

  • draft wills and settle an estate
  • lead with litigation on estates and wills
  • represent beneficiaries
  • serve as experts in specialized areas of law
  • give advice on executors and administrators
  • help avoid estate planning errors

Let’s go over each of these in more detail. If you’d like an overview first on estate planning, read our guide on wills and estate laws.

Draft wills and settle an estate

Under Canadian estate laws, it is possible to write one’s last will and testament on a paper napkin, since this may be considered as a “holographic” will. In certain cases, this may not stand up in court because it may be challenged by disgruntled relatives.

But is it better to leave one’s final desires to chance instead of hiring an expert, such as an estate lawyer?

Daniel Paperny says that the biggest takeaway when such “napkin wills” are challenged in court by disgruntled beneficiaries is “don’t tempt fate, don’t leave anything to chance.” Paperny is an estate lawyer practicing in Toronto and is a partner at Loopstra Nixon LLP.

Lead on litigation on estates and wills

If a person relies on something scribbled on a piece of paper, “you are begging for litigation,” Paperny says. It can be easily challenged, and it is difficult to prove that it is a valid expression of the testator’s intent.

Paperny adds that such “holographic” wills can be valid if signed and written in the testator’s hand.

Paperny suggests that the best thing to do is to draft a will that complies with formal statutory requirements, properly witnessed by two witnesses. This advice comes from Paperny’s experiences as a litigation lawyer, who has seen just about everything when it comes to families feuding over estates.

Challenging a will

An estate lawyer is for those who:

  • want to challenge a will
  • are unable to get information from an estate administrator
  • are not pleased with their estate trustee’s actions

An estate lawyer should have excellent knowledge of Canada’s estate laws.

Questioning the testator’s capacity

Kim Whaley, Founding Partner of WEL Partners, says that among the more common reasons for litigation is the question of the testator’s capacity.

A competent lawyer should be able to say if the client is of sound mind to make decisions that will go into the will.

That may sound easy, she added, but it can be a challenge in these days of dealing with clients by remote means (e.g., Zoom, telephone, etc.).

Undue influence when making the will

The other common ground for litigation is whether there was “undue influence” from someone over the testator. Undue influence means forcing or coercing the testator so that the influencing person can benefit more from the testator’s estate.

“There may be some coercion that is tantamount to fraud, but it may be difficult to prove, as there often aren’t witnesses,” says Whaley.

Sender Tator of Schnurr Kirsh Oelbaum Tator LLP agrees that capacity and undue influences are the biggest reasons for challenging a will. But he says it’s important for a client to know that “there is a difference [between] being a disappointed beneficiary and being someone with legal grounds to challenge a will.”

“Don’t get me wrong, anybody can challenge a will, but the courts, case law, and statutes say there are very specific valid reasons for challenging a will,” says Tator.

Represent beneficiaries

Brittany Miller, an Associate at Goddard & Gammage LLP in Toronto, mentions other roles that estate lawyers are also engaged in.

Miller says that most people think of an estate lawyer as someone who drafts wills and powers of attorney or helps a trustee in administering an estate. “While estate lawyers do perform these important roles, an estate lawyer also does much more than these discrete tasks,” Miller says.

An estate lawyer can represent beneficiaries of an estate in protecting their interests and in ensuring that the estate is administered properly.

Other ways that an estate lawyer can help beneficiaries include:

  • assisting a spouse, child, or other financial dependent in bringing a claim against an estate if they have not been sufficiently provided for
  • helping family members and estate trustees resolve conflicts about the estate assets

Serve as experts in specialized areas of law

If you want to ensure your dying wishes are carried out, you probably want a lawyer with specialized practice to help you come up with an estate plan. This is what Margaret O’Sullivan says, who is an estate planning lawyer at O’Sullivan Estate Lawyers LLP in Toronto.

You can go to a general practice lawyer (or even an online will service), especially if your estate is relatively small and simple and your family situation is uncomplicated, says O’Sullivan.

“But by going to a specialist, you’re going to get a more tailored and bespoke approach in terms of helping achieve the objectives you are looking for.”

Give advice on executors and administrators

An estate planning lawyer can also advise a testator who should be their will’s executor, since this is a challenging but critical job that requires diligence.

Sometimes, if the estate is more complicated, an estate lawyer might even suggest paying a professional to execute the will.

In terms of estate administration, Miller says an estate lawyer can help guide an estate trustee throughout the administration process. This will ensure that trustees understand and fulfill their legal duties and obligations.

Also, an estate lawyer can help solve any issues that might arise with beneficiaries, creditors, or third-party institutions.

More importantly, estate lawyers can help protect an estate trustee from personal liability during the process of administering the will.

Help avoid estate planning errors

There are a lot of common pitfalls when doing estate planning, which estate lawyers are sure to help clients avoid:

  • doing it all on your own: since Canada’s estate laws apply differently to every family, testators must consult a lawyer in estate planning
  • assuming everything is settled: disagreements usually arise after the testator’s death, and these can be avoided by having an estate lawyer early on

What are the roles of an estate lawyer in Canada?

The roles of an estate lawyer can be specified according to their specialty under Canadian estate and succession laws. They help clients in and out of court, and even after their client has passed away.

There are two types of estate lawyers, says Diane Vieira, a partner at de VRIES LITIGATION LLP in Toronto. These are:

Estate planners

“Estate planners help their clients with succession planning and choosing substitute decision makers,” says Vieira. Also called estate planning lawyers, estate planners draft testamentary documents for clients, such as wills and powers of attorney.

Estate planners are also essential during retirement planning, ensuring clients that their affairs are in order. Estate planners help their clients not only while they are living, but even after they have died.

Some specific tasks of an estate planning lawyer include:

  • help develop a more airtight estate plan and how to divide estate assets
  • advise on the various types of trusts (e.g., inter vivos trusts or living trusts, and testamentary trusts)
  • help trustors decide if their trust should be a revocable or irrevocable trust
  • advise clients on the probate process, avoiding probate, or how to apply for probate
  • help deal with taxation issues (e.g., income taxes and estate taxes)

Depending on the specific case of client, estate planning lawyers also help clients on complex issues, such as:

  • guardianship of minor children should clients pass away before their children come of age
  • what to do with their properties, such real estate, and their life insurance
  • if a second marriage (with or without children) or common-law relationship is involved

Estate litigators

On the other hand, there are estate litigators or estate litigation lawyers, such as Vieira. These types of lawyers “assist clients in resolving adversarial disputes involving estates and covering a wide range of legal disputes,” she says.

They advise beneficiaries and estate trustees on such matters as will challenges, dependents’ relief claims, and will interpretations.

Estate litigation lawyers also handle matters involving capacity issues. The most common question is whether the testator (the person making a will) is of sound mind when they wrote their will.

Other types of these claims include disputes or disagreements over:

  • capacity assessments
  • guardianship matters
  • health care decisions

Here’s a video of our previous interviews with estate lawyers who tell us how they dealt with their clients and about the nature of their work:

Looking for a Canadian estate lawyer? Check out this list of personal tax planning and estate lawyers.

When do you hire an estate lawyer?

People who want to write their own wills may wonder: when is it proper to hire an estate lawyer? Is it before or after they write their will or do their estate planning?

Since every family’s case is unique, the answer is that it usually depends on a lot of factors. Nevertheless, “the earlier, the better” is still the best rule.

When challenging a will

Beneficiaries or heirs of a deceased testator must reach out to an estate lawyer as soon as they think that there’s something wrong. These people often “tried to obtain information with little success,” says Vieira. “They reach out to lawyers after their own efforts have failed to get results.”

Vieira says speed is needed if there is a potential claim against an estate because of limitation periods. “Limitation periods apply, and they need to move swiftly to formulate a potential claim and get information about their options.”

When becoming an executor

An estate trustee or executor should seek out lawyers very early in the process. It can even be as early as when they find out that they’re named as a trustee or an executor.

Estate trustees may be worried about their personal liability. They might need assistance with administering an estate or need counsel to defend against a claim on the estate.

“Being a fiduciary is a difficult and demanding role,” Vieira says. “It is not surprising that estate trustees would seek out legal advice.”

What are the skills that Canadian estate lawyers must have?

There are some common qualities that clients must look for when hiring estate lawyers, whether as an estate planner or as an estate litigator.

An estate lawyer must be:

  • analytical
  • have good interpersonal and problem-solving skills
  • can communicate well, both in person and in writing

A good estate lawyer should possess a specific set of skills. An estate lawyer should:

Know the client’s circumstances

Going through the client’s background and family dynamics can be crucial for an estate planning lawyer.

For lawyers, red flags should go up when it comes to certain provisions in a will, says Ian Hull of Hull & Hull LLP. This may include unbalanced gifting for children or leaving out of the will someone closely related to the testator.

It’s not a matter of telling the client not to do these things, Hull says, but “a good estate planning lawyer should know the circumstances to make sure that these wishes won’t be challenged by those who are disappointed.”

It could mean suggesting a family meeting or attaching a letter of explanation to go along with the will.

A good estate planning lawyer should also take good notes during any meeting with the client to get a good grasp of the family’s overall circumstances.

Know litigation procedures

An estate litigation lawyer must have extensive knowledge about civil litigation and probate matters and some knowledge of health and family law.

Related to litigation, Paperny suggests two other qualities of estate lawyers:

The first is that “you want a strong advocate, someone willing to go to the mat for you,” regardless of which side of the litigation the client is on.

The other quality is finding someone “who is going to be honest with you about your prospects for success and what risks there are in relation to the potential benefits.”

Understand family dynamics

Above all, a strong understanding of emotions and family dynamics is crucial. This holds true whether the lawyer is on the planning or the litigation side of estate law.

 “There are issues that come up that date back decades,” says Tator, such as “children who accuse their siblings of being more favoured, things that might have been unsaid for years.”

“I think a good estate lawyer is cognizant of those dynamics and those emotions at all times,” Tator says. “And I often say to clients, I know you can’t remove the emotion from it, but it’s not my family, so I can – let me shoulder that burden for you.”

The work of estate lawyers in Canada

Estate lawyers in Canada can help clients before and even after they pass away. They can assist with the client’s estate planning and act as litigators for matters that can only be resolved in court.

An estate lawyer has a specific set of skills to help clients, not just with the technicalities of the law, but also on handling sensitive family matters.

Would you consider hiring an estate lawyer to help with drafting your will? Let us know in the comments.

 

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