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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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Marlin Horst head shot

Testators can head off the threat of an estate dispute by explaining decisions to family members before death, says Toronto corporate and estates lawyer Marlin Horst.

“The worst situation is where someone passes away, and the family is shocked by the contents of the will,” says Horst, a partner with Shibley Righton LLP. “It shouldn’t be that way, but it’s that lack of communication that leads to so many family disputes.”

A recent survey carried out by TD Wealth identified family conflict as the biggest threat to estate planning, with almost half — 46 per cent — of respondents claiming it was their biggest worry. That figure was almost double any other concern, with market volatility and tax reform trailing behind at 24 per cent and 14 per cent respectively.

Digging even deeper into the issue of family conflict, 30 per cent of respondents cited beneficiary designation as the biggest point of contention. Other leading causes of conflict were non-communication and blended families, according to the survey.

The results come as no surprise to Horst, who advises his clients to forewarn family members about any decisions that depart from the norm.

“There are a few assumptions made in families that will not always hold true,” he tells AdvocateDaily.com. “So when a client wants to give a large portion to charity or differing amounts to their children, I ask them to think long and hard about it, and then to explain to their children what is going to happen and why.”

According to Horst, parents will frequently have understandable reasons for differential treatment of their children in a will, and he says the simple act of disclosing them offers a release valve for any developing sibling resentment.

“Parents may base the allocation on the actual or perceived financial need of each child,” he says.

But even equal treatment among children is no guarantee of smooth estate administration, especially in cases where one sibling feels they are more deserving than the others.

“It’s not unusual for the bulk of caregiving responsibilities for elderly parents to fall on one child, so if they get the same share as siblings who did nothing, that can cause strife, even though it’s a typical way to divide an estate,” Horst explains.

He says another common gripe can see bereaved family members divided along generational lines when testators make their bequests to their grandchildren rather than their direct offspring.

“It comes up more often in wealthier families, but the children of the deceased are offended because they see it as an indictment of their ability to be good stewards of the family wealth,” Horst says.

While he acknowledges some estate disputes are unavoidable, he says the chances are reduced when testators are open about their intentions.

“Communication is key in my mind,” Horst says. “At the same time, estate litigation is one of the fastest-growing areas of the law, and we’re going to be seeing a lot of movement in the coming years as the aging Baby Boomer generation — the wealthiest to ever live — transfer their assets to their children.”

 

 

Date_Published
2019-11-18
Description

Marlin Horst head shot

Dying without a will is a selfish decision that can add financial hardship to families suffering with grief, legal experts say.

“When you don’t do anything, and there is a problem, you’re leaving it to somebody else to solve the problem, and that’s no kindness to the people that are grieving a person’s death,” says David Freedman, associate law professor at Queen’s University.

More than half of Canadians don’t have wills. Some people don’t like considering their death, while others carry misconceptions about how their estate will be distributed.

Among the big errors is assuming that all assets will go to the surviving spouse if there are children.

There’s no guarantee that will be the case anywhere in Canada. Provincial rules vary, with some allocating the first $200,000 or $300,000 to spouses, while others pass along one-third of the estate when there are children.

Common-law spouses can wind up with nothing in Ontario, Quebec, New Brunswick, Newfoundland and Labrador, and Nova Scotia, although they can be named beneficiaries outside the will for RRSPs, TFSAs or life insurance.

In Quebec, common-law couples have the same rights as those who are married by entering into civil unions.

The law says those without a will have died “intestate” with no instructions as to how their property should be divided and distributed.

That can put beneficiaries through a wild and costly maze involving the courts that can cause family friction and ill will.

“If you care about any people while you’re alive to leave them without a will you’re leaving people with such a mess,” says Tim Hewson, president of Legalwills.ca, an online service available in Canada outside Quebec.

Failing to have someone in charge of the estate can tear families apart, he said in an interview.

“Families who have previously got along just fine, if there’s no process, theres nobody in charge, then that can cause a lot of animosity and acrimony in families.”

In an interview with AdvocateDaily.com, Toronto wills and estate lawyer Marlin Horst says, it’s not really surprising” that so many people have put off the task.

“People generally do not want to consider their own mortality,” he says. “In particular, younger people do not believe it is an issue.”

Horst, a partner with Shibley Righton LLP, says the issue becomes more complicated in the case of blended families.

“If a person dies intestate and they are part of a blended family it becomes increasingly difficult to determine how the assets will be divided, Horst says. “For example, are stepchildren dependents? The result may not be at all what the people involved thought would happen.

“In the modern world, the blended family issue is very important, and the law has not really caught up with that,” says Horst.

Having a will makes it simpler and less expensive to settle the estate and avoid the family arguments that sometimes end up in court, says Quebec notary Benoit Rivet.

“A lot of times, family problems will resurface with grief, and not having a will only escalates the problem. Because of this, they may end up in court simply because they can’t get along and are arguing about something that happened 30 years ago.”

He added that a notary can also ensure that the proper steps are taken to protect the heirs, who would be responsible if the estate has a lot of debts.

The forced distribution of assets wouldnt likely reflect what most spouses would wish, and could see siblings or distant relatives inherit the estate even if the common-law couple had been in a 20-year relationship.

While Canada Revenue Agency recognizes common-law relationships after 12 months of cohabitation for taxation purposes, some provinces, including Ontario and Quebec, don’t for the purpose of inheritances.

The Western provinces of Alberta, Manitoba and Saskatchewan give common-law spouses some rights to property if they have been living together for two or three years or have a child together, said Sandra Foster, author of You Can’t Take It With You: Common-Sense Estate Planning for Canadians.

“There are many ways to define family, and only in a few provinces have the definitions of family under intestate even moved a little bit forward and become more modern,” she said in an interview.

“It could mean that the common-law spouse could end up with much less than they assumed that they would get.”

The living spouse would be forced to sue the estate for “unjust enrichment” to try to replicate how much of the family property would be available to her or him, said Freedman.

“Things can be done, but youre playing a game of chess where every move is very expensive.”

Meanwhile, an estranged spouse of the deceased would still have a claim to the estate in some provinces since they arent divorced.

The lack of a will can be especially difficult when there are minor children. The court could be called upon to oversee the process and make financial decisions.

In Quebec, the surviving spouse may be entitled to half the value of family patrimony, including residences, furniture, vehicles and pension plans. The spouse would also receive one-third of the estate while two-thirds would be held for the children and be distributed automatically when they reach the age of majority, often not an ideal age to receive a large sum of money.

If the deceased does not have any children, the surviving spouse would receive two-thirds of the estate while one-third would go to the deceaseds parents and siblings.

A family living in Ontario with a surviving spouse and two children would see the spouse receive the first $200,000 and a third of the remaining estate, with the rest split equally between the children.

The guardianship of the children of single parents can be especially traumatic since a judge could have to decide the most appropriate person to care for the children without personally knowing any of the parties.

“So the children may be going to the wrong person,” said Hewson.

Horst says the solution is simple.

 

Date_Published
2019-10-15
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Matthew Urback Head ShotTechnology may be expanding our horizons faster than ever imagined, but don’t expect to see the legal acceptance of video wills any time soon, says Toronto wills and estates lawyer Matthew 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
2019-10-02
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Marlin Horst head shotA recent Nova Scotia Supreme Court decision upholds the legal principle that people can leave their estate to whomever they want, provided they are fulfilling their support obligations, says Toronto wills and estate lawyer Marlin Horst.

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

Please click here to read the rest of the story.

Date_Published
2019-09-18
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Marlin Horst head shotRemoving the executor of a will is a difficult proposition — and for good reason, says Toronto wills and estate lawyer Marlin Horst.

Horst, a partner with Shibley Righton LLP, says it’s not enough for someone to say, “I dislike the fact that a certain person has been named executor.”

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

Please click here to read the rest of the story.

Date_Published
2019-08-19
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Matthew Urback Head ShotOnline will kits are affordable and easy to use, but they deny the testator the opportunity to have meaningful discussions with a professional about individual circumstances and wishes, says Toronto wills and estates lawyer Matthew 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
2019-07-22
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Marlin Horst head shotFailing to fulfil your obligations in a divorce settlement can be costly, even after you pass away, says Toronto wills and estate lawyer Marlin Horst.

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

Please click here to read the rest of the story.

Date_Published
2019-07-05
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Matthew Urback Head ShotCelebrities are just like the rest of us when it comes to estate disputes, says Toronto wills and estates lawyer Matthew 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
2019-06-21
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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
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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
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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
.


Date_Published
2018-11-07
Description

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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