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When you’re dealing with a deadly pandemic that is more fatal to the elderly than most others, the law surrounding wills, estates and trusts can come sharply into focus.
This year’s winners of Canadian Lawyer’s Top 10 Boutiques in Wills, Estates and Trusts have seen some key trends emerge recently, especially those related to COVID-19. Among them is the rise of video conference options for dealing with estate planning during a pandemic that has left many people unable or unwilling to leave the safety of their home.
Daniel Paperny, a partner with winning firm WEL Partners, says client meetings, court hearings and mediations are all conducted over Zoom, and “we have normalized the practice of taking affidavits and witnessing the execution of certain documents via video conference as well.
“To say that the pandemic has impacted our practice area and the way we do business would be an understatement,” says Paperny.
The pandemic has revealed necessary modernizations long overdue in estate and trust planning, including virtual execution of testamentary documents and advances toward digitizing wills. And, like many, lawyers and support staff aren’t in the office as much as they used to be, most of the time doing their work from home.
Margaret O’Sullivan, managing partner at winner O’Sullivan Estate Lawyers, says these changes will “allow more efficiency and ability to accommodate clients wherever they may be, including snowbirds going south and others to their summer homes, which will smooth out the process.” Likewise, estate planning on video platforms will live on beyond the pandemic.
“Our ability to reach out to our clients wherever they may be in the world will present new opportunities and give us a true global reach.”
Many clients of wills, estates and trust boutiques have lost loved ones who have fallen ill, been hospitalized and died due to COVID-19. Often, the death of someone due to COVID-19 can be sudden and unexpected, so there was no estate plan in place. Of course, says Paperny, this can lead to a greater likelihood for litigation due to the lack of a plan.
Sender Tator, a partner with Schnurr Kirsh Oelbaum Tator LLP, another winning firm in the wills, trusts and estates category, says he seen quite a bit of litigation that has come out of the transfer of wealth as the Canadian population ages. As well, there are more disputes between estate trustees and beneficiaries over the executor’s handling of the administration of the estate.
Nimali Gamage of Goddard Gamage LLP agrees, saying there are more “family members abusing or misusing the court process to battle siblings under the guise of elder law litigation.” There’s also an increase in the number of people of all ages wanting to make wills and powers of attorney due to issues raised and discussions prompted by COVID-19.
The pandemic has brought into focus some of the shortcomings in long-term care homes and assisted living facilities — with issues related to understaffing and inadequate living conditions. This in turn has led to more conflict among family members in trying to determine the care for their elderly loved ones and at what cost.
“There can be highly contentious disputes between substitute decision-makers, children or other family members about the manner in which elder adults should be cared for,” Paperny says.
Angelique Moss of Casey & Moss LLP says she is seeing similar situations. “The decision to move someone into long-term care is particularly fraught right now due to COVID-19. Siblings will often have different views about what’s in their parent’s best interests.” Her colleague Laura Cardiff adds, “These can be very heated files. In many ways, they have more in common with a child custody matter than your traditional estate litigation file. “
Even day-to-day decision-making requires an “impossible balancing” of COVID risks against the harm of isolation, she says, “for example, whether or to what extent to permit visitors, how to define essential outings, navigating the wearing of PPE and, now, receipt of the vaccine.” All these decisions can leave substitute decision-makers vulnerable to criticism and even litigation.
In late 2020, Canadian Lawyer asked lawyers, in-house counsel and clients from across Canada to vote on the wills, estates and trust boutiques. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included. To qualify for our list and be voted for in our survey, firms were required to derive a minimum of 80 per cent of their work from wills, trusts and estate law. Please find a full description of our methodology at canadianlawyermag.com/survey/method.