After many rich and satisfying years at O'Sullivan Estate Lawyers, it is with mixed emotions that I take my departure from the firm for a new phase of my career as in-house counsel at a major trust company (watch my LinkedIn page for a further announcement in September). While I am excited by my new opportunity, I am also very sad to leave all my current fabulous and knowledgeable colleagues and co-workers.
As might be expected, my departure is causing me to reflect on
my over 20 years in private practice as a trust and estate lawyer.
I've also been blogging with the firm for over 10 years, since
we started the blog, and we have covered a wide range of topics in
that time.
For my very last blog at O'Sullivan Estate Lawyers, I've
chosen to reflect on a few lessons learned in my trust and estate
practice. I hope my insights will be of benefit to you.
In this practice area, perhaps more than many, we constantly see
examples of people who "planned to fail" because they
failed to plan (and for those of you interested, this saying has
been attributed to both Benjamin Franklin and Winston Churchill,
but it appears 1970s self-help author Alan Lakein may in fact be
the originator).
Proper planning is essential for anyone who wants to set their
estate administration up for success, but this is particularly
important for those with complex situations (such as second
marriages – see our blog on "Estate Planning for a Second Spouse"),
estranged family members, or who have high value, complex or
cross-border assets.
Estates are being administered all the time where a lot more legal
advice and legal fees are incurred because the deceased either did
not plan effectively or did not plan at all.
For example, I assisted one family with an estate administration
where the deceased and their spouse died together in an accident,
both without wills, and owning an active business. This very sad
and unfortunate situation resulted in a sharp decrease in the value
of the business since no one had any legal authority to run it for
several months while awaiting probate for both estates.
In another situation, a couple used an online will kit from the
U.S. (while resident in Ontario with no ties to the U.S.). The
ambiguous wording in the wills they prepared and signed led to
litigation as family members fought over the true intentions of the
deceased.
In other situations, a deceased's planning has been the product
of either wishful thinking or not enough consideration of the
personalities of and relationships among the family members
involved. I've assisted executors who were siblings and
appointed as co-executors who were incredibly hostile to each other
before their parent died. That hostility carried over into the
estate administration, resulting in increased time, complexity and
legal fees as they battled out every detail.
Sometimes, a deceased has done good planning, but then
unfortunately not updated their estate plan for many years and
circumstances have changed or evolved (which can be challenging as
noted in our blog "Preparing A Will is Only the First
Step—Keeping it Updated is the Challenge").
I have seen more than one situation where a surviving spouse
(usually a second spouse) was forced to make a dependant's
relief claim because their deceased spouse hadn't updated their
estate plan to take into account their long-term
relationship.
Typically, spouses made a plan (sometimes including a domestic
contract) early on in the relationship, when the finances of each
were truly quite separate. As their relationship matured, deepened
and became more intertwined, the spouse with more financial assets
took on more of their shared expenses, often for several years, but
did not update their estate plan to reflect the surviving
spouse's increasing financial dependency and need to be
supported from their estate (blended families really do require
more planning – see our blog "Estate Planning Considerations for Blended
Families").
Finally, there are the situations where the deceased's planning
would have benefited from additional expert guidance or increased
cooperation and integration between their professional advisors (as
discussed in our blogs "Simplicity vs Oversimplicity in Estate
Planning" and "Beneficiary Designations: When Less is Not
More").
I have assisted many executors with non-resident estates where the
deceased was resident in a foreign jurisdiction, but has
significant assets in Ontario. Notwithstanding this, no thought was
given to obtaining Ontario legal advice to ensure that the estate
administration would proceed as smoothly and cost-effectively as
possible, resulting in delays due to incompatibility of probate
laws and additional Ontario probate fees (Estate Administration
Tax), as well as increased legal fees.
In my experience, good legal advice in all of the situations above
would have prevented a lot of headaches, family disputes, delays
and unintended consequences.
I hope you continue to enjoy the firm's blog for many years to come. I wish to thank Margaret O'Sullivan for the many excellent years I have had at O'Sullivan Estate Lawyers. I look forward to staying in touch (and, of course, I will keep reading the blog)!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.