Planning Your Estate

On Episode 19:Planning Your Estate – Mark Fancourt-Smith and Alix Stoicheff speak with Peter Roberts, QC and Jisoo Vis about the firm’s new Estate Planning and Litigation Group, and how they provide the necessary advice required to create and administer a personalized estate plan that will suit clients' needs and minimize the tax burden.

Chapters

• 1:10 Why did the firm create the Estate Planning & Litigation Group?
• 4:35 Why did you decide to join the Estate Planning & Litigation Group?
• 6:25 What are some of the most common issues that arise when estates are challenged?
• 8:13 How can you minimize the risk that a will being challenged?

Transcript

Mark Fancourt-Smith  00:15

Welcome to LawsonInsight. I'm Mark Fancourt-Smith and I use the pronouns he/him. I'm a partner in Lawson Lundell’s Vancouver office, practicing in the Dispute & Resolution Group.

Alixandra Stoicheff  00:24

And I'm Alixandra Stoicheff and I use the pronouns she/her. I'm an associate in the firm's Calgary office, and I practice primarily in the Dispute & Resolution Group. Thank you for joining us on our podcast brought to you by Lawson Lundell. On this episode, we will be speaking with Peter Roberts and Jisoo Vis about the firm's new Estate Planning & Litigation Group.

Mark Fancourt-Smith  00:42

Peter is a partner based in our Vancouver office with over 30 years of experience in litigation. He was the head of the litigation group here at Lawson Lundell, from 2008 to 2010, and is now the head of the Estate Planning & Litigation Group. Jisoo is an associate also based in Vancouver and practices in the firm’s Business Law Group, with a particular focus in corporate and commercial law, commercial real estate and now trusts and estates law. Peter and Jisoo welcome to the podcast. 

Peter Roberts, QC  01:08

Nice to be here.

Jisoo Vis  01:09

Nice to be here, too.

Mark Fancourt-Smith  01:10

So a number of our lawyers have practiced in the areas of wills and estates for a number of years, but Lawson is recently created an actual Estate Planning & Litigation Group. Can you tell us a bit about who's in the group and what does it do?

Peter Roberts, QC  01:24

I'd be happy to Mark. There's a group of us, as you say, both in the Vancouver office in the Calgary office across a number of different practices. And the reason we got together was we found that there was more and more estate work on both sides, both pre-death and post-death that clients were asking us about. And so a large group of us got together to form the estate group, myself, my colleague Jisoo who's with us today, our tax guy, Len Glass, and Michelle Casey, in the litigation group in Vancouver with me. And in Calgary, we have Alix, who's also with us today, John Selnes and Grant Vogeli who's a senior practitioner there. And we found that we were relying on each other, more and more often sort of on an ad hoc basis and decided it would be more fun to practice as a group to provide a comprehensive estate practice and array of services to the people who need it.

Alix Stoicheff  02:19

And so and you touched upon this a little bit, but what prompted the creation of this group at this time? And then can you tell us a little bit more about what the group does?

Peter Roberts, QC  02:27

Well, for me, personally, it was just an escalating number of clients needing assistance in the estate side, particularly in the litigation context, which is my background. And it makes sense because of course, we are well into the largest transfer of wealth in Western society, probably ever, as the baby boomers aged out and pass on to the next level of consciousness. And people on the pre-planning stage want to plan to distribute their assets in a fair way amongst their family members and leave legacies that are appropriate to their lives, that kind of thing. And we thought that it would be a good idea to provide a comprehensive service to them to deal with tax issues, trust issues, and all the various challenges that can come up after somebody has passed away in the matters left in the hands of their families and their executors. And bringing this group together to work to provide a seamless service was a good idea and what the clients were asking for.

Jisoo Vis  03:26

Yeah, and in terms of what the group does, we can help with everything from preparing wills, powers of attorney, which is a document that empowers an individual to make financial decisions on your behalf. And representation agreements, which is what allows somebody to make medical decisions on your behalf. If you're incapacitated. We also do filings for probates forming family trusts and structuring your business interests in a tax efficient manner. And, of course, helping with litigation for contentious estate related matters. We also assist with interpreting wills and trusts and providing advice on cross jurisdictional issues. For example, for clients who own property in one jurisdiction, but who are domiciled and deceased in another jurisdiction. And by the way, for those who are maybe not aware, domicile just means where your permanent home was.

Mark Fancourt-Smith  04:35

Let me ask each of you this, what was it that brought each of you respectively to the practice sort of before the group was actually formed? Knowing Peter as long as I have, one guarantee is that if he's working on a file, it's bound to be interesting. But can you tell me what brought you to this area?

Peter Roberts, QC  04:53

Well for me Mark, you put your thumb on it. It is an incredibly interesting area of the law. Factually, procedurally, and illegally. For most people, it seems like a pretty straightforward thing, what to be done with their estate, you know, leave it to my wife and, or spouse and kids, or to a charity. But there are so many issues that spin out of that both prior to, and particularly after death. And it's can get very, very complicated. And so for me professionally, it's sort of the intersection of compelling human stories with a very complicated area of the law, which is incredibly interesting.

Jisoo Vis  05:31

And for me Mark, estate's work involves a very human element, which isn't as prominent in my other areas of practice, which are corporate and real estate law. So I really enjoy advising clients on how best to leave a legacy for their loved ones and to provide for them. I've talked clients through some of their most vulnerable and emotional moments that one can face in life. And so that's been incredibly rewarding for me.

Mark Fancourt-Smith  06:05

I think both those answers are great, Alix? 

Alix Stoicheff  06:08

So I'm a relatively recent addition to the group. And I decided to join, in large part for some of the similar reasons that Jisoo was saying in terms of the human element of this type of work. And also, just because it's an interesting complement to the rest of the civil litigation practice that I do.

Mark-Fancourt-Smith  06:25

Alright. In the preparation of the will, you know, clarity, and defensibility, I suppose, are two of the key elements that people look for. And on the flip side, what are some of the most common issues that arise when estates are challenged?

Peter Roberts, QC  06:40

Probably the most common thing is somebody has been written out of a will or has received a bequest that isn't as large as they thought they were entitled to. And so they bring a wills variation claim under their wills estate successions act, seeking to have a larger part of the estate given to them. That's probably the most common thing. A company that is often allegations that they will frequently made in the last period of time before someone passes away was the subject of undue influence, or that the person writing the will, the will maker, was incapable as a matter of law of executing that will. And so it's ineffective, meaning that the will subsequent in time becomes the governing testamentary document. Those are the kinds of things that generally come up, you also get fights about whether someone's carrying out the duties of an executor appropriately or not. And sadly, often people die without making a will. And so you get an intestacy, which would be governed at least in British Columbia by the provisions of WESA or the wills estates and successions act and whether people qualify as spouses or not, children or not. And it becomes a sort of a Gordian knot of factual complexity for whoever gets appointed to administer the estate to work out. Tracking down assets is another problem, often, because people have them in multiple jurisdictions, and it's a bit of a detective exercise and getting to the bottom of those kinds of things.

Alix Stoicheff  08:13

And so at a high level, what are some of the ways that people can avoid or at least minimize the risk that there will be challenges to the will or some of the other issues that you just mentioned, Peter,

Peter Roberts, QC  08:21

The best way to do it is to go and see someone like Jisoo and get a proper will done, where all the issues that may come up after the will, such as the appropriateness of a bequest to a spouse or child are dealt with and addressed, and that the lawyer has a chance to assess the capacity of the will maker. And that kind of thing, because often, whether there's going to be a challenge or not, doesn't come up for years. And the lawyers file from a decade or more ago with chronicling how the will came about or what the wishes of the will make her were become incredibly important. So having it done properly, right at the outset to properly reflect your wishes and to address all the issues that may arise is probably the best way to go about avoiding unhappiness after death.

Jisoo Vis  09:09

Yes, so um, I think one of the biggest and most frequent mistakes that you can make is assuming that your estate is too small or too simple to warrant speaking with the lawyer about. So make sure you have an updated will. And also, just as a side tip, make sure that some the beneficiary designations on your registered plans are up to date. So like your RSPs and TFSA’s. So as an example, some people might designate their parents or siblings and forget to update the beneficiary designations after either getting married or getting into a common law relationship. Which means that if that person passes away, the proceeds of their registered plans go to their parents or siblings instead of the spouse, which in most cases would not reflect the intentions of the deceased. And you also want to make sure that your will is in the jurisdiction where you permanently live. So for example, if you made your will in Alberta, but you retired in Kelowna, in BC, for example, you would want to update your will. And you also want to make sure that the tax consequences of any gifts or donations are thought through to minimize tax consequences for your estate.

Mark Fancourt-Smith  10:44

So in a word, I think the moral of today's episode is go and see Jisoo, so that you don't have to ever see Peter. Fair to say, no offense, Peter,

Peter Roberts, QC  10:57

But that regrettably, that's entirely accurate.

Mark Fancourt-Smith  11:00

Jisoo, Peter, thank you so much for coming on the podcast today.

Peter Roberts, QC  11:04

You're more than welcome.

Jisoo Vis  11:05

Thanks so much for having us.

Mark Fancourt-Smith  11:08

Thank you for joining us on LawsonInsight, and thanks again to Peter and Jisoo for joining us.

Alix Stoicheff  11:12

You can also stay up-to-date by connecting with us on social media using the handle @LawsonLundell. And by subscribing to the podcast on Google, Apple or Spotify podcasts. Thanks so much for listening!