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Wills and Estates

The drafting of wills and powers of attorney, and the planning and implementation of personal estate plans, has grown more complex over the last two decades. Shibley Righton LLP has a team of top notch lawyers whose experience enables them to assist our clients with matters involving:

  • will drafting at all levels of complexity
  • acting as estate trustee
  • litigation for both estates and beneficiaries in resolving disputes over will interpretation, executor and trustee duties and compensation, competency and all other aspects of the estates process

The firm's wills and estates clients include a broad cross-section of individuals. A significant portion of our wills and estates practice is also representing major national charities in matters relating to wills and estates. (We also represent these charities in a broader capacity, through our Business Law group.) Whether acting for an individual or one of Canada's largest charities, we have the expertise to meet their varying needs quickly, efficiently, and thoroughly

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Publications

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Laura Stairs Head ShotBeneficiaries and would-be beneficiaries are often unhappy about the contents of a will, but launching a challenge isn’t an easy thing to do, says Windsor wills and estates lawyer Laura Stairs.

“It’s very difficult, but something that comes up all the time,” says Stairs, associate with Shibley Righton LLP.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-05-24
Description

Matthew Urback Head ShotTestators should steer clear of ambiguous language if they wish to avoid a will challenge after their death, says Toronto wills and estates lawyer Matthew Urback.

In a recent decision, Alberta’s Court of Appeal upheld a lower court judge’s decision to include personal items located on the deceased’s property in the award to his surviving daughters after he bequeathed his "home" to them. That ruling came over the objections of the dead man’s brother, who hoped to inherit the disputed items as the beneficiary of the estate’s residue.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-05-23
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Matthew Urback Head ShotWith almost a decade of experience behind him, Toronto litigator Matthew Urback has seen it all when it comes to estate plans.

Urback, partner with Shibley Righton LLP, shares with AdvocateDaily.com some of the biggest estate planning mistakes he’s come across.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-04-25
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Matthew Urback Head ShotPeople who live common-law with a new partner after the breakdown of a marriage are advised to get their affairs in order — and get a will, Toronto litigator Matthew Urback tells AdvocateDaily.com.

“If that person were to die, it could be a messy situation,” says Urback, associate with Shibley Righton LLP. “Even if you were with a new spouse in a common-law relationship for decades, the law says that if you’re married, your former spouse will have an entitlement to your estate.”

The way the law treats people who die without a will — or intestate — is set out in Ontario’s Succession Law Reform Act, which explicitly details how an estate will be divided between surviving family members and relatives, “with spouse defined in that circumstance as ‘two people who are married each other,’” he explains.

If someone is in a common-law relationship and they don’t get a divorce to formally end their earlier marriage, Urback says the Act will stipulate that the former spouse has an entitlement to the estate, even if they parted decades ago.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2019-03-25
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Matthew Urback Head ShotKnowing when to stop the search for a will following the death of a loved one is a tough call, Toronto litigator Matthew Urback tells AdvocateDaily.com.

Urback, associate with Shibley Righton LLP, says it’s surprisingly common for uncertainty to reign among family and friends about whether the deceased actually left a will behind.

“It’s almost like proving a negative because you’re searching for something that you’re not sure actually exists,” he explains. “That means it’s hard to know when to throw in the towel.”

Each case is unique, but Urback says potential beneficiaries should be guided by their own judgment, based on their knowledge of the deceased.

“If it was someone who kept all their money under the mattress, then you’re going to have a different threshold than if it’s someone who was highly sophisticated in terms of seeking professional and financial planning advice,” he says.   

If a person had a close relationship with a particular lawyer or law firm they would turn to frequently for advice, Urback says that’s the first place family and friends should check for a will.  

However, he acknowledges that not everyone seeks legal advice to draw up a will.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-02-27
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Marlin Horst head shotA former telecommunication executive’s attempt to shield family properties from his bankruptcy proceedings provides a textbook example of a sham trust, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

In a recent decision, an Ontario Superior Court judge ruled the trusts holding a farm and cottage for the benefit of the man’s children and stepchildren were void, relying in part on expert evidence that showed the font used in the text of the trust did not exist at the time he claimed to have drawn them up.

But Horst, partner with Shibley Righton LLP, says the font discrepancy was just the “icing on the cake” for the successful trustee in bankruptcy, whose motion to have the bankrupt’s interest in the properties declared assets of the estate — and therefore available to creditors — was granted.

“There were so many other things that pointed to the trust being a sham, and the decision lays those out in great detail,” he says. “There was very little evidence to suggest that the property was ever held genuinely in trust, and I think the result would have been the same, even without the font element.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-02-12
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peter murphy headshotThe responsibilities of an estate trustee, who administers the personal and financial affairs of a deceased person, can be greater than expected, says Toronto estates lawyer Peter Murphy.

Murphy, partner with Shibley Righton LLP, says it can be enormously helpful for an estate trustee, or executor, to become acquainted with all that’s involved before agreeing to take on the job.

“Being an estate trustee takes a fair bit of time and effort, and it often involves more than people realize unless they have experience in this area,” he tells AdvocateDaily.com.

The obligations include administering the estate according to provincial law, as well as federal requirements such as the Income Tax Act, Murphy says.

The process begins with examining the will to confirm who the estate trustee is. Murphy says it could be more than one person, which could allow them to split up the work.

"However, having multiple trustees can make decision-making more difficult," he says.

"The first responsibility," he says, "is usually working with a funeral director to take care of burial or cremation and ceremonial arrangements."

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-01-30
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Matthew Urback Head ShotA will offers testators a measure of control over their assets even in death, Toronto litigator Matthew Urback tells AdvocateDaily.com.

“In your lifetime, you have the ability to use your property and spend money however you see fit,” says Urback, an associate with Shibley Righton LLP. “I would suggest most people would want to see that authority continue in death.

“If you don’t make a will, you’re basically leaving the allocation of your assets to the law,” he says, noting that Ontario’s Succession Law Reform Act (SLRA) sets out strict rules for the distribution of an estate when a person dies without a will.

According to the law, the deceased’s surviving spouse gets the first $200,000 from any estate, with the remainder divided through a formula between the spouse and any surviving children. When there is just one child, the remaining assets are split equally with the spouse.

If there is more than one child, then the spouse gets one-third of the amount over $200,000, and the remaining two-thirds are divided equally among all the children. 

However, the SLRA does not take into account the individual circumstances of the deceased, Urback says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-01-25
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Matthew Urback Head ShotDying without a will may have unintended consequences on one’s family members, Toronto wills and estates lawyer Matthew Urback tells Law Times.

Urback, an associate with Shibley Righton LLP’s Toronto office, says that without a will, one’s estate is then divvied up by the courts based on governing legislation and the personal situation of the deceased. But that process, he says, may not be what the deceased person would have wanted.

Another problem with not having a will, says Urback, is that the person probably didn’t take advantage of any tax-saving opportunities, which will likely mean that there will be less left over for beneficiaries.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-12-06
Description

Matthew Urback Head ShotAccounting for digital assets is becoming a bigger part of estate planning as people do more and more online, Toronto litigator Matthew Urback tells Law Times.

“I haven’t seen it addressed all that much yet and I think it’s something that’s going to become a much bigger issue than it already is in the coming years just because of the prevalence of digital assets,” says Urback, a civil and commercial litigator with Shibley Righton LLP’s Toronto office.

The assets include email and social media accounts, says the online legal publication, noting that “many people fail to identify those parts of their lives in their estate and risk the loss of control over their online identity as well as accounts that could have some significant value.”

The largely paperless, online assets could also include valuable ones like cryptocurrency, and if the owner doesn’t specify where the assets are and how to access them, it’s like they don't exist, says Urback.

“It might be worth it to appoint an executor, an estate trustee that is exclusively in charge of all your digital assets and all of your electronic holdings,” he says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-11-14
Description

Matthew Urback Head ShotFinancial institutions are right to be concerned about fraud, especially when a power of attorney is involved.

That is because a power of attorney is a tremendously powerful document that gives another person authority to act on one’s behalf. The grantee of the power of attorney gains the almost complete ability to manage the grantor’s financial affairs, and so banks need to be vigilant about ensuring that person is indeed authorized and fit to carry out such a responsibility in the interests of the individual.

Banks can refuse to accept powers of attorney for a number of reasons: the document may be too old, lack clarity, or fail to conform to a bank’s internal policies.

This is an excerpt from an article that appeared on financialpost.com.

Please click here to read the rest of the story
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Date_Published
2018-11-07
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Matthew Urback Head ShotWhile legendary singers Aretha Franklin and Prince died without wills, there is a celebrity that set a good example for others to consider when it comes to estate planning, says Toronto wills and estates lawyer Matthew Urback.

“Paul Walker is that unusual case where he spelled out his wishes clearly. It’s especially interesting because he died so young and unexpectedly,” Urback tells AdvocateDaily.com.

Walker, best known for the Fast & Furious movies, reportedly drafted a will when his daughter was three, more than 10 years before his 2013 death in a car crash at the age of 40, says Urback, an associate with Shibley Righton LLP.

“He left a detailed will and instructions concerning his young daughter,” he says. “Getting a will in place early should be happening more than it actually does.”

Aside from his litigation practice, Urback also drafts estate plans and wills. He says many people who approach him for this service have recently had a child.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-10-30
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Laura Stairs Head ShotIncreasing personal debt means more families will have to deal with insolvent estates following the deaths of loved ones, Windsor trusts and estates lawyer Laura Stairs tells AdvocateDaily.com.

Stairs, an associate with Shibley Righton LLP, says she has noticed a significant number of cases in which the testator’s liabilities exceed the value of their assets at the time of death.

Frequently she says the deceased is a middle-aged person whose death was unexpected, leaving them with little or no time to get their affairs in order.

“Insolvent estates seem to come up quite a bit,” Stairs says. “People have a pretty large reliance on credit these days, so when they pass away suddenly, it can be a problem.”

Depending on the individual circumstances of a case, Stairs says it can take some time to determine whether an estate is insolvent.

“If you have an individual who was living with the deceased, such as a child living with a parent, it may be obvious to them from the outset if they had no assets and a large credit card debt or car payments owing,” she explains. “But in others, it may take longer for the estate trustee to identify creditors if they don’t have knowledge of the individual circumstances of the deceased.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-10-29
Description

Matthew Urback Head ShotDying without a will means an estate will be dispersed among family in an orderly way, but not necessarily the way the person would have wanted, says Toronto wills and estates lawyer Matthew Urback.

The distribution of assets of a person who dies without a will, or intestate, is governed by a statute in Ontario called the Succession Law Reform Act, explains Urback, an associate with Shibley Righton LLP.

He tells AdvocateDaily.com the first $200,000 — known as the preferential share — goes to the spouse.

According to the Act, “the first $200,000 is given to the deceased person's spouse … Anything over $200,000 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules.”

Intestate succession of assets was in the news after singer Aretha Franklin died Aug. 16 without a will. Michigan law suggests her four sons should receive an equal share of the $80-million US estate, reports the Globe and Mail.

The intestate process is similar in Ontario and Urback says it's important to have a will so that a person's assets are distributed as desired.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-09-18
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Matthew Urback Head ShotShibley Righton's Matthew Urback was interviewed by CBC Radio in Windsor about securing your online presence and legacy after death.

Please click here to listen to the full interview.

Date_Published
2018-08-27
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Matthew Urback Head ShotFamily members must often make tough decisions when a loved one shows signs of incapacity, says Toronto wills and estates lawyer Matthew Urback.

In these situations, it’s helpful to have a capacity assessor talk to them, he says.

“They are trained and have the experience to evaluate if someone is incapable of making their own decisions or looking after themselves,” Urback tells AdvocateDaily.com.

“They are health-care professionals or social workers and they will usually conduct multiple interviews with the person.”

Urback, an associate with Shibley Righton LLP, says he hears from family members who are unsure about how fit a relative is to make daily decisions.

“The person in question may be able to complete some tasks, but not others.”

He says Ontario's Substitutes Decision Act can provide information regarding next steps.

“That legislation offers a roadmap for relatives seeking to have someone act on the individual’s behalf when it comes to property or personal care,” Urback says.

“It provides a process for the court to appoint a guardian of property, for example, when an individual is deemed incapable of managing.”

The guardian is then able to deal with banks and other financial institutions, says Urback.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-06-27
Description

Matthew Urback Head ShotA claim of lack of capacity is a common reason wills are challenged and it can lead to a lengthy and costly legal process, says Toronto wills and estates lawyer Matthew Urback.

“It can sometimes be hard to prove a lack of capacity because everyone is assumed to have it regardless of their age,” says Urback, an associate with Shibley Righton LLP.

 “The person making the challenge has to substantiate that allegation and it can be difficult to do,” he tells AdvocateDaily.com.

The reason it can be so tough to establish a lack of capacity is that the party making the challenge has to go back in time, Urback explains.

“The individual who made the will isn’t around anymore,” he says.

It’s challenging to prove something debatable, Urback says, and that’s when you see litigation and a drawn-out dispute.

Usually at the beginning of court proceedings, the party filing the challenge will seek an order to access mental and legal records, Urback says.

“It’s obtained early because if there is nothing in the medical records, that will quickly impact whether you have any evidence to go forward with.”

However, it isn’t always an easy or fast process, he cautions.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-05-31
Description

The automation of legal documents seems like a straightforward solution for Canadians facing access to justice issues. However, lawyers caution clients turning to tech may be leaving themselves open to litigation as documents, such as contracts and wills, could lack important details.

Canada is no stranger to artificial intelligence (AI) based legal services, with companies such as Miralaw in Ottawa creating the divorce app Thistoo, and Montreal firm EXEO Attorneys building a virtual assistant to help people with immigration questions. Now there’s a new player on the scene offering legal documents to customers for under $40 apiece.

Wonder.Legal, a website founded by Jérémie Eskenazi in Paris, launched in Canada on Jan. 10 and provides an online platform for people to create legal documents without the assistance of a lawyer.

Eskenazi, who holds a master's degree in science from MIT and attended Ecole Centrale de Lyon (a top French science school), said the site is available in 12 countries worldwide and uses locally based lawyers in each country to create the documents..

This is an excerpt from an article that appeared on TheLawyerDaily.ca.

Please click here to read the rest of the story.


Date_Published
2018-02-26
Description

Matthew Urback Head ShotWith the exponential rise in the value of cryptocurrency, it’s important to include this new-age asset in your estate planning, Toronto litigator Matthew Urback writes in the Financial Post.

“Since the concept of digital property is so new, it is rarely addressed in wills, often leaving ill-equipped trustees or family members to attempt to navigate a web of online accounts and assets,” says Urback, an associate with Shibley Righton LLP’s Toronto office.

And what might be a modest investment right now, could balloon into a fortune, he says.

One of the earliest transactions involving Bitcoin was the indirect exchange of 10,000 units for two pizzas in 2010, says Urback. Today, those Bitcoins are worth about $100 million US.

He tells the Post that cryptocurrencies are only part of the story.

“Social media accounts have become an integral part of our lives. Rewards programs, travel miles and even gaming profiles are also increasingly common, while email accounts routinely carry massive amounts of information, sentimental history and value,” Urback writes.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-02-14
Description

Matthew Urback Head ShotWhen it comes to digital assets, having an electronic estate trustee is key

One of the earliest transactions involving Bitcoin was the indirect exchange of 10,000 units of the then-little-known cryptocurrency for two pizzas in 2010. Hopefully the pizzas were very good, because those Bitcoins are now worth about US$100 million.

While the story is now part of Bitcoin lore, it serves to illustrate just how extreme the growth in the cryptocurrency’s value has been.

That rise has added a new dimension and urgency to a question that has been complicating the estate-planning process in recent years: What happens to your digital property when you die?

Since the concept of digital property is so new, it is rarely addressed in wills, often leaving ill-equipped trustees or family members to attempt to navigate a web of online accounts and assets.

This is an excerpt from an article that appeared on FinancialPost.com.

Please click here to read the rest of the story.

Date_Published
2018-01-29

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