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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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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
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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
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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
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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
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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
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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
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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
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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
Description

Matthew Urback Head ShotSocial media has become such a relevant presence in our lives that we must start thinking about how it's to be dealt with after we die, says Toronto litigator Matthew Urback, whose practice focuses on wills and estates law.

One of the options is to assign an electronic estate trustee, Urback, an associate with Shibley Righton LLP’s Toronto office, tells AdvocateDaily.com.

“It’s a concept that really is quite new,” he explains. “Only a generation ago, the whole idea would have been crazy.

“An electronic trustee may be named with different considerations in mind than what you might otherwise contemplate for a trustee.”

The concept is slowly becoming a reality and the issue is moving to the forefront by necessity.

He points to Facebook as an example, where a person’s page often turns into a memorial after someone has died. But Facebook has acknowledged that pages of those who have deceased have become an issue so it has created death policies, allowing individuals to set up their preferences for what happens to their profiles after they die. Twitter and LinkedIn have also implemented policies.

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

Please click here to read the rest of the story
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Date_Published
2018-01-29
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Peter Murphy Head ShotToronto lawyer Peter Murphy knows first hand how easy it can be to avoid making a will.

Despite having a lawyer in the family, Murphy’s own parents were well into their 70s before his mother asked him about preparing her will — and only after she was prompted by a friend.

“This friend was a little surprised that my mother hadn't completed her estate planning, and I was a little chagrined to think it was something that we had never focused on,” Murphy, a partner with Shibley Righton LLP, tells AdvocateDaily.com.

“We immediately started the process of estate planning and drawing up wills and powers of attorney for my mother and father.”  

Murphy says his parents’ experience is far from unique.

“I think many people don’t understand the importance of having a will and powers of attorney. They tend to put off thinking about these types of issues,” he says.

Even if they appreciate the importance of estate planning, it’s easy to avoid taking action.

“People see it as an expense they would prefer not to incur," says Murphy. "They don't realize that estate planning will often save money and a great deal of aggravation in the long run. Every adult should have their will and powers of attorney in place.”

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

Please click here to read the rest of the story.

Date_Published
2018-01-29
Description

Having a conversation with aging parents about their wishes once they’re unable to care for themselves is difficult, so Toronto litigator Matthew Urback advises adult children to have these talks earlier in life’s stages.

“Sometimes having these discussions suggests to your parents that their days of independence are over, which is not necessarily true. It’s just the way these conversations are perceived,” he tells AdvocateDaily.com.

“A good way to avoid that is simply to have the conversation much earlier. It’s more of a plan for the future versus something that’s happening right now. You’re not implicitly suggesting they are no longer independent, you’re evolving the way you help them,” says Urback, an associate with Shibley Righton LLP.

Discussing hot-button issues can sometimes put a loved one in defence mode, he says. But he has some suggestions to make such conversations a little easier.

This is an excerpt from a story that appeared on AdvocateDaily.com.

Please click here to read the complete article.

Date_Published
2017-11-15
Description

Shibley Righton's Matthew Urback was interviewed by The Lawyer's Daily about charitable giving in wills. At the beginning of 2016, certain trusts lost what was considered to be an immensely beneficial trait: the ability for income earned within the trust to be taxed at graduated rates. From that point forward, testamentary trusts would generally now be subject to tax at the highest marginal rate, which of course would lead to more tax payable and less income retained.

Needless to say, allowing the Canada Revenue Agency to have its hand further in the pocket of these testamentary trusts is a significant change....

This is an excerpt from the article that appeared on The Lawyer's Daily.  Please click here to read the complete story.

Date_Published
2017-09-26
Description

A will may never be totally lawsuit-proof, but Toronto litigator Matthew Urback says there are steps people can take to minimize the chances it will be contested in court.

“There are a number of things you can do to reduce that possibility,” Urback, an associate with Shibley Righton LLP, tells AdvocateDaily.com.

The best starting point, he says, is to hire a lawyer who can lay out the process and make sure the proper wording and forms are used — someone who understands potential pitfalls so they can be avoided.

Urback says that a good will clearly lays out the intent. And, he adds, it is helpful if the individual clearly articulates his or her plan to the benefactors to avoid surprises later on. Trying to figure it all out later, when the individual is no longer around, can be problematic and may lead to a lawsuit.

This is an excerpt from an article that appeared on AdvocateDaily.com.  Please click here to read the complete story.

Date_Published
2017-08-24
Description

Ideally, a well-drafted Will should remain in effect for years, and be able to account for any foreseeable changes to the Estate. However, it is no secret that theory does not always match with reality. Unfortunately, a common pitfall with respect to Will drafting, which can lead to litigation, is the concept of "ademption".

Simply put, a gift "adeems" (or fails) when the property set out in the Will cannot be ascertained. It may have been given away, lost, no longer in the form that it is described in the Will, or so on.

Some gifts will adeem, and some will not. For these purposes, it is important to set out the difference between different classes of gifts that can be made in a Will:

Specific Gifts - a tangible bequest that usually refers to identifiable property: "To my daughter, my lucky Toronto Maple Leafs sweater."

Demonstrative Gifts - a non-specific bequest but with a clear specification as to the source: "To my nephew John, a $50 gift from my TD Account #XXX."

General Gifts - a non-specific bequest: "To my nephew John, a $50 gift."

Residual Gift - a bequest that comprises remaining property that was not previously earmarked in any particular manner.

The more general a gift, the less likely that it will adeem. The more specific a gift, the greater the possibility that it will adeem. For example, if the lucky Toronto Maple Leafs sweater cannot be found, or no longer exists, the gift fails.

There is a notable exception in the Substitute Decisions Act, 1992 which takes effect if the subject of a specific gift is disposed of by a guardian of property:

36. (1)  The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest. 

In other words, if a guardian of property, acting on behalf of our now deceased individual, previously sold the lucky Toronto Maple Leafs sweater, the beneficiary would instead receive an amount equal to its worth - whatever that may be.

Any specific gifts made within a Will should be made on the understanding the property might not be in the hands of the deceased individual at the time of death. A periodic review of the Will is a good idea to ensure that there are no surprises at a later time.

(By the way, I'm not sure there has been such a thing as a "lucky Toronto Maple Leafs sweater" in the past 50 years, but hopefully there will be again soon!)

This article also appeared on LinkedIn.com.

Date_Published
2017-07-20
Description

Which jurisdiction's laws apply when a deceased has assets in several locations? Is it the location of the assets or the location of the individual?

To answer this question, Ontario's Succession Law Reform Act draws a distinction between immovables (real estate) and movables (any other personal property). The general rule is that immovables are governed by the law of the land in which the land is situated, and movables are governed by the law of the domicile of the deceased at the time of death.

For example, if a deceased was domiciled in Ontario at the time of death, and owned real estate in the United States, although that deceased's personal property - say, bank accounts - would be governed pursuant to Ontario law, this land interest would be governed pursuant to the law of the United States. It may be that the formalities of each jurisdiction's succession law differ, so a Will which may properly gift land situated in Ontario may not effectively gift land situated elsewhere.

Despite this rule, there is precedent for courts in Ontario to deviate. In Vak Estate (Re) (1994), 20 O.R. (3d) 378 (Ont. Ct. (Gen. Div.)) (http://canlii.ca/t/1vt56), the deceased died intestate, and at the time of death, was domiciled in Manitoba and owned land in Ontario. The general rule would therefore suggest that the land disposition would be governed by Ontario law, however, Kinsman J. stated as follows:

"The assets irrespective of whether they are movables or immovables, should be assembled under the administrators umbrella, and after setting aside the highest preferential share permitted under the respective jurisdictions where the assets are located, the residue of the estate be divided by the applicable law of the deceased's usual or habitual place of residence."

Kinsman J. appeared to be more concerned with fairness and equity to the deceased's widow, rather than with the general rules of governance. To illustrate, he actually found that it was...:

"...unnecessary to decide whether the laws of Ontario or Manitoba govern the disposition of the Ontario real estate."

Unfortunately, this case has not been referenced significantly within subsequent Ontario jurisprudence. While deviation from the general rule does not appear to be a continuous trend, the court has certainly left the door open to an alternative governing approach, especially when fairness and equity calls.

This article also appeared on LinkedIn.com

Date_Published
2017-07-19
Description

In part two of a four-part series, “Avoiding estate planning pitfalls,” Matthew Urback, an estates litigation specialist at law firm Shibley, Righton LLP in Toronto, explains the two most common reasons clients' wills are contested, leading to a potentially lengthy and costly legal process.

Please click here to watch the video.

Date_Published
2017-07-05

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