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Date_Published
2020-03-27
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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

Megan Mackey Head Shot

Condo corporations may lawfully ban pets in certain circumstances, says Toronto condominium and commercial litigator Megan Mackey.

Global News recently reported on a campaign by residents of two Toronto condo buildings seeking to overturn their board’s recently introduced ban on pets.

Mackey, a partner with Shibley Righton LLP, says the dispute is a useful reminder to unit owners and renters of the power Ontario’s Condominium Act confers on boards to make their own rules and bylaws.

“The only restriction on the condo corporation when implementing rules is that they must be reasonable,” she tells AdvocateDaily.com. “Rules cannot be implemented to ban pets unless there are reasons to do so, such as safety and security issues.

“As long as it’s within the realm of reasonableness, a court won’t interfere or overturn the rule. It’s not possible to comment on this precise instance without knowing all the facts,” Mackey says.

According to the Global story, the Toronto condo corporation’s ban is complicated by the fact that the property has a series of designated dog areas and a dedicated “dog run.” One resident quoted by the news outlet said she had moved there in 2017 “partially because it’s a pet-friendly community.”

The woman — who also fosters shelter dogs — is spearheading a petition to reverse the ban, which a residents’ association spokesperson blamed on the irresponsible actions of a minority of pet owners in the buildings.

A lawyer for the condo corporation explained to Global that the pet prohibition passed in 2016 following concerns about “the cleanliness of hallways, elevators, the lobby and other common areas.” But its in-force date was postponed more than two years to allow residents to register grandfathered pets already on the property.

Mackey says the condo may wish to explore other options to target troublesome pet owners, noting that building managers in Florida have caused a stir by threatening to identify rogue owners via DNA kits using samples from abandoned dog feces.

“The idea is that you require each dog to be registered with a sample of their DNA, and then you can perform tests to find out which owners are not cleaning up after their pets,” she says. “But from what I’ve heard about the Florida cases, the cleanliness problem went away as soon as the system was implemented.”

Mackey says it would also be relatively simple for the corporation to reverse its decision if a majority of the board agreed, and owners were in favour of the change.

“The rule doesn’t have to be permanent,” she says.

In other cases, Mackey says Canadian courts have upheld bans on pets over a certain weight and limits on the number of pets per unit.

“People love their pets, so my message to someone who is looking at buying a condo is to check whether it is a pet-friendly building, and the likelihood of it remaining that way,” Mackey says, adding that she would encourage prospective purchasers to have a lawyer check the condo’s rules, bylaws and declaration.

“The declaration is much more difficult to change than rules, so if the declaration explicitly permits pets, then the board does not have the same power to change that,” she says.

 

Date_Published
2019-11-12
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