When negotiating, arranging and implementing wills, trusts and estates, the unique dramas accompanying a family are growing in intricacy.
Happy families are all alike, but unhappy families are all unhappy in their own way, wrote Tolstoy in Anna Karenina. When negotiating, arranging and implementing wills, trusts and estates, the unique dramas accompanying a family — and the evolving cultural and economic context in which they exist — are growing in intricacy, especially compared to the simple days of primogeniture, where an estate was transferred to the child lucky enough to be born first.
Margaret O’Sullivan, managing partner of O’Sullivan Estate Lawyers LLP, says her practice is becoming increasingly complex with the wide variety of families, their different philosophies and where and how they are organized, in 2018.
“It’s not the simple, nuclear-family situation of everybody living here and having two kids and a spouse,” she says. “We’re now into situations of multiple marriages, obligations to prior spouses, children from different marriages, children living in different countries, assets being owned outside the country, whether it is holiday homes or else challenging situations involving some of the beneficiaries including children, whether it be because of a mental or a physical challenge. And in some cases, we have every single one of those combined into one plan.”
Her practice is also globalized, with Canadians having roots and connections to every region on earth. O’Sullivan says understanding and catering to differing orientations toward family is essential for her firm. Some clients see the roles of mom, dad, son and daughter differently, with different duties and expectations attached to each. The sense of family also exists along a spectrum of a heavily individualistic west to an east that is often less so. These cultural facts are embedded in O’Sullivan’s clients’ succession plans.
“It’s not just a straight Ontario born and bred, we have people from every country in the world, we have different religions and different cultural values, which are now forming part of people’s planning issues that we have to be very attuned to and very sensitive to,” she says.
More recently, O’Sullivan says, her bar is contending with the Superior Court of Ontario’s decision in Milne Estate (Re), from September 2018. The ruling could nullify wills across the province by invalidating the basket clause, which has been used for 20 years by estate planners.
The ruling said that wills cannot assign the distribution of assets to the discretion of trustees. To save money on probate fees, it has been common practice to create two wills, allocating assets that require probate to the first and those that do not to the second. The basket clause allows the trustees to assign the assets to either will, which was the problem for Justice Sean Dunphy, because the executor then does not set out certainty in where the assets go.
Apart from O’Sullivan Estate Lawyers LLP also voted as Canada’s top boutiques in wills, trusts and estates were Bales Beall LLP, de Vries Litigation LLP, The Estate House, Goddard Gamage LLP, Hull & Hull LLP, Legacy Tax + Trust Lawyers, Schnurr Kirsh Oelbaum Tator LLP, Underwood Gilholme Estate Lawyers and Whaley Estate Litigation Partners.
The winning firms that Canadian Lawyer interviewed said it is a particularly busy era for estates lawyers, as the baby boomers age and pass on their wealth to the next generation.
“There is a huge transfer of wealth as the population ages. And I guess there tends to be, I’ll say unfortunately, a fair amount of litigation arising from that transfer of wealth,” says Sender Tator, a partner at Schnurr Kirsh Oelbaum Tator LLP.
On top of a busy decade, for Calgary’s Underwood Gilholme Estate Lawyers, the busy season came early this year, blown into action with an unfortunately not-so-uncharacteristic September blizzard.
Canadians tend to spend the winter indoors, boxing themselves in with germs and viruses and facilitating a more intimate access to flus and other contagion. What this means, says Terry Gilholme, is more people die and estates lawyers have more work to do.
Their boutique has been operating since 2004, when the big firms stopped handling wills, trusts and estate planning to focus on more profitable areas. At that time, criminal, family, real estate and other personal services were moved out of the focus for these firms, says Jonathan Ng, a partner at Underwood Gilholme.
“In the ’90s in Calgary, the big firms downtown realized that wills and estates lawyers don’t make as much as the corporate and tax and litigators. They moved us all out. And we formed boutiques,” Gilholme says.
But now the ripple effects of the economic downturn are eliminating files for lawyers in all practice areas and Gilholme and Ng say they see an increasing number of young lawyers filling their plates with wills, trusts and estate work.
“But Calgary is in a very bad financial situation. And a lot of lawyers are going into wills and estates; a lot of the young ones coming up are moving into this area,” Gilholme says.
When Suzana Popovic-Montag moved into the area, she says, Hull & Hull LLP co-founder Rodney Hull told her, “You don’t get to the big house very often” in wills, trusts and estates. But counter to that forewarning, the firm just recently won in the Supreme Court in Sweet v. Moore, a case concerning unjust enrichment.
In that case, after the death of Lawrence Moore, the conflict arose over who was entitled to the payout of an insurance policy, his former wife Michelle Moore, who paid the premiums and had an oral agreement, or Risa Sweet, the common-law partner whom Lawrence Moore had subsequently designated as the beneficiary. Hull & Hull acted for Moore.
The application judge ruled in Michelle Moore’s favour, but a split Court of Appeal overturned the decision, ruling that the lower court had incorrectly found the oral contract between the Moores amounted to an equitable assignment. The Court of Appeal found there was no unjust enrichment as Sweet’s claim to the proceeds was due to her designation as an “irrevocable beneficiary.”
“The Supreme Court ultimately granted us leave and reversed that decision and said the woman, who was paying the premiums pursuant to an oral contract with the deceased, was entitled to them when he passed away, notwithstanding, the fact that they were irrevocably designated to the other woman,” says Popovic-Montag.
Based on the commentary arising out of the decision, Popovic-Montag says many are “fussed” about how it affects “what everyone understood to be a clear protection in terms of an irrevocable beneficiary,” she says.
The late Rodney Hull began the firm with his son Ian Hull in 1998. The younger Hull has authored four books on the practice and is a certified legal specialist in estates and trusts law and civil litigation. Popovic-Montag is managing partner.
Top Ten Wills, Trusts and Estates (listed alphabetically)
Bales Beall LLPToronto
Founded in 2005, Bales Beall’s practice, with nine lawyers, focuses on all manner of wills and estates work, including estate planning and administration and litigation involving wills, estates and guardianship matters. The firm’s lawyers act both as advocates and as personal legal advisors for their clients. Karon Bales is certified by the Law Society of Ontario as a specialist in estates and trusts law and family law. Partner Kristine Anderson has extensive litigation experience at all levels of court. Bales, partner Jessica Feldman and associate Alex Turner are members of the Society of Trust and Estate Practitioners. Bales is a Fellow of the International Academy of Family Lawyers and an Academician of the International Academy of Estate and Trust Law. Karon also acts as a mediator in estate and family law matters.
de Vries Litigation LLP TorontoToronto, Oakville
de Vries Litigation LLP is a leading firm in estate, trust and capacity litigation. It also assists in the administration of complex estates. The firm provides services throughout the Greater Toronto and Hamilton Area and into the Niagara Peninsula. With eight lawyers and a dedicated probate clerk, areas of expertise include: will challenges, dependant support claims, contested passing of accounts, elder law, probate applications, disputed estate administration, as well as beneficiary, attorney and fiduciary disputes. The firm represents a variety of individuals, government agencies, private banking and wealth management groups, trust companies, estate trustees, beneficiaries, charities and private trusts. de Vries Litigation has built its reputation on excellence and effective advice, advocacy and resolution and has a proven track record for estate appeals. The firm founded the popular blog site “allaboutestates.ca,” a collaborative daily blog, writing on topics of interest to the wider profession and industry.
Goddard Gamage LLPToronto
Since 1999, Goddard Gamage LLP has become known for its expertise in guardianship, power of attorney and capacity litigation, estate litigation, elder law, estate planning and administration and ODSP legal issues. Partners Jan Goddard and Nimali Gamage and their team are dedicated to continuing legal education and law reform through speaking engagements, writing papers and volunteering on committees. Jan Goddard served 10 years as counsel at the Office of the Public Guardian and Trustee in Ontario. She is now a distinguished fellow of the Canadian Centre for Elder Law and was a member of the Advisory Group to the Law Commission of Ontario’s major project on Legal Capacity, Decision-making and Guardianship. In 2014, Nimali Gamage received the Hoffstein Book Prize from the Ontario Bar Association Trusts and Estates group. Since 2009, she has been a member of the Estates Subcommittee of the Civil Rules Committee for the Province of Ontario.
Hull & Hull LLP
Hull & Hull began when the late Rodney Hull and his son Ian hung their shingle in the early 1990s. Rodney Hull became one of the most respected estates lawyers in Canada, receiving the Ontario Bar Association Wills and Trusts Section’s Award of Excellence in 2005 and the Law Society Medal in 2007. The firm, now led by Ian Hull and managing partner Suzana Popovic-Montag, currently lists 20 lawyers under its banner. Hull and Popovic-Montag have literally “written the books” in this area of the law, including most recently the fifth edition of Probate Practice and the second edition of Challenging the Validity of Wills. The firm practises estate litigation, will challenges and defences, dependants’ support claims, defence of solicitor’s negligence, passing of accounts, quantum meruit claims, unjust enrichment, guardianship, trustee and attorney obligations, trustee disputes and estate planning and administration.
Legacy Tax + Trust LawyersVancouver
Legacy Tax + Trust Lawyers was founded in 2000 as a boutique law firm specializing in tax, trust and estate planning (including cross-border planning) along with related litigation. The firm has 22 lawyers. The firm’s notable mandates include: advising clients on tax and estate planning (including the use of trusts and charitable donations) and administration in complex family situations to minimize tax, protect from wills variation and other similar claims and reduce or eliminate various taxes and probate fees; succession planning for owner-managed businesses; tax dispute resolution; conducting litigation regarding high-net-worth estates on behalf of executors and trustees, beneficiaries and claimants; cross-border tax, trust and estate planning for clients with a particular emphasis on U.S. and Canadian issues on death and during lifetime and on the establishment of non-resident trusts.
O’Sullivan Estate LawyersToronto
O’Sullivan Estate Lawyers celebrated its 20th anniversary in 2018. Founding partner Margaret O’Sullivan’s vision was to distill big-firm expertise into a discreet, boutique-firm setting, offering customized high-touch private client services. The firm advises some of Canada’s wealthiest families and high-net-worth individuals, including internationally. Its focus is domestic, cross-border and multi-jurisdictional trust and estate advice using a holistic client-centric approach to address the needs of private clients with challenging situations. It provides bespoke solutions from planning to administration to dispute resolution. The firm has a blog that has grown to more than 1,250 subscribers. To commemorate its 20th anniversary, the firm published a book, Trust and Estate Essentials – Achieving Success in Family Succession, which explores a broad range of trust and estate issues from cross-border Canada-U.S. estate planning and administration to advance planning to such esoteric topics as ethical wills.
Schnurr Kirsh Oelbaum Tator LLPToronto, Bowmanville
Established in 1992, this estate litigation boutique’s lawyers specialize in estate, trust and guardianship litigation and mediation, and have chaired conferences, taught and authored two texts in estate law: Estate Litigation and The Annotated Ontario Estates Statutes. The firm provides advice to clients in complex, emotional estate disputes. The firm acts as counsel to lawyers throughout Ontario and has expertise in guardianship applications and powers of attorney disputes for clients facing capacity issues. It also offers mediation and arbitration services. The firm’s lawyers speak frequently for the Society of Trust and Estate Practitioners Canada, the Law Society of Ontario, the Ontario Bar Association and other groups. Within estate litigation, the firm’s practice includes contested wills, trustee disputes, passing of accounts, dependent support claims, will interpretations, family law act claims and variations of trusts. They also do mental incompetency litigation and estate administration and planning.
The Estate HouseEdmonton
The Estate House is an estates boutique in Edmonton founded in 2004 by partners Douglas Gorman and David Koski. The firm has since grown to five lawyers. Each estate is unique, as are the personalities involved. Through their involvement with many estates, having acted — at different times — for both personal representatives and for beneficiaries, the lawyers at The Estate House recognize the significance of estate matters to the people involved and the importance of resolving disputes cost-effectively when difficulties do arise. Client service areas include personal representative assistance, beneficiary advice, estate planning, estate litigation and adult guardianship and trusteeship. Koski, at the firm since 2004, is a past chairman of the Canadian Bar Association Wills, Estates and Trusts section (North) and past president of the Estate Planning Council of Edmonton. Also at the firm are Deborah McGuire, Mariya Bindas and David Ranieri.
Underwood Gilholme Estate LawyersCalgary
This boutique has grown to become the leading name in estate planning and administration in Calgary. Although Cliff Underwood retired in 2017, the firm continues his legacy of down-to-earth, efficient and intelligent counsel. The diverse backgrounds of its seven senior practitioners run the gamut: private practice at small to national firms, Crown counsel with Alberta Justice, in-house counsel at several trust companies and instructors of the Wills and Estates course at the University of Calgary Faculty of Law. Gilholme is a member of the Society of Estate and Trust Practitioners and the Estate Planning Council and former chairwoman of the Canadian Bar Association Wills and Trusts section.
Whaley Estate Litigation PartnersToronto
Whaley Estate Litigation Partners is a trust and estate litigation boutique in Toronto. The firm was founded by Kimberly Whaley in 2005. WEL lawyers advise estate trustees, trustees, attorneys, guardians and other fiduciaries on their duties and obligations arising at common law and under statute. WEL Partners are frequently retained to do opinion work, appeals and conduct litigation, dispute resolution and mediation involving will and trust challenges, wealth succession, dependants’ support, child and adult guardianship, powers of attorney, fiduciary accounting, incapacity and undue influence, end-of-life decisions and elder law proceedings throughout Ontario. WEL lawyers contribute regularly to the WEL blog and newsletter, frequently write and present papers to other professionals and are active in the community sharing their knowledge and educating the public and community leaders.