O’Sullivan Estate Lawyers
in the Media
O’Sullivan Estate Lawyers in the Media
The Toronto-based trust and estate lawyers at O’Sullivan Estate Lawyers are regularly sought by reporters, editors, as well as TV and radio producers for their thought leadership, opinions and analysis of important and topical trust and estate issues which impact families in wealth succession and planning.
They are also regular columnists for The Lawyer’s Daily, published by LexisNexis, one of Canada’s most important publications for the legal profession, as well as Advisor’s Edge, published by Newcom. The firm is also a member of Mondaq, and has a robust listing of articles which are distributed through the Mondaq Global Network, with more than 1 million members worldwide, including lawyers, accountants, as well as C-suite executives and business owners.
Disinheriting a child easier in some provinces than others
Ontario judges are also empowered to void wills that offend public policy, but it was the Court of Appeal’s landmark decision not to intervene in the case of Spence v BMO Trust Company that reinforced the strength of testamentary freedom in the province, said Marly Peikes, a partner with O’Sullivan Estate Lawyers in Toronto.
“When you get into public policy questions, it gets messy,” she said. “But I’m not sure it’s the court’s role to go digging through the layers of a person’s decision to disinherit a child.”
Solving the Multijurisdictional Jigsaw Puzzle: Which Law Applies?
But what happens on death to determine which law will apply? The body of law called the “conflict of laws” creates rules to determine the applicable law to govern succession on death. The rules are complex, sometimes vague, and as well, vary significantly between common law jurisdictions, such as the Canadian provinces and territories (except Quebec), the United States, England and Wales, Australia and New Zealand, and civil law jurisdictions such as Quebec, France, Italy, Japan and most Latin America countries, and many more.
Estate planning with joint assets: Think of your executor
All this additional investigative work the executor must do to determine the deceased’s intention may cause additional delays and increased costs in the estate’s administration.
Estate administration deadlines, concerns
Most matters are not subject to timing issues or require immediate attention, although estate trustees (the current Ontario term for executors or administrators) should administer an estate in a timely fashion, and can be criticized for failing to do so.
Personal care: Guidelines for estate attorneys
Most directions to attorneys for personal care start and finish with end-of-life issues. It is my view that guidelines to attorneys for personal care should be much more comprehensive and extensive. Simply appointing decision-makers, but then not providing directions on key issues of importance is not adequate to ensure a client’s wishes are carried out, and that their well-being is safeguarded.
The uncertainty of beneficiary designation
So, where are we today? These conflicting decisions have left uncertainty for estate lawyers and financial advisers with respect to beneficiary designations. Estate planning professionals are waiting patiently for a higher court to give more clarity or for legislative amendments to protect the validity of beneficiary designations.
Make sure you have it before you give it
Even if the specific gift is in existence at the time of your death, you need to consider whether you actually have the power to make this gift. That is, do you actually own the asset you wish to give: what if that earmarked bank account was actually held joint with right of survivorship with another beneficiary?
The importance of communicating with estate beneficiaries
Unfortunately, the importance of good communication is often overlooked by estate trustees, and beneficiaries are left in the dark for months (or even years). Beneficiaries will wonder what is going on, and question why they have received no information, which may increase suspicions that something untoward is taking place. “Lawyering up” will typically then follow, since lack of information can breed distrust.