WILLS AND ESTATES Practice Basics 2017 chair Jordan Atin, C.S., TEP Atin Professional Corporation March 27, 2017 *CLE17-0030501-A-PUB* DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility. © 2017 All Rights Reserved This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees. The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6 Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315 Fax: 416-947-3991 E-mail: [email protected] www.lsuc.on.ca Library and Archives Canada Cataloguing in Publication Wills and Estates Practice Basics 2017 ISBN 978-1-77094-221-0 (Hardcopy) ISBN 978-1-77094-222-7 (PDF) WILLS AND ESTATES Practice Basics 2017 Chair: Jordan Atin, C.S., TEP, Atin Professional Corporation Monday, March 27, 2017 9:00 a.m. – 12:30 p.m. Total CPD Hours = 2 h 30 m Substantive + 1 h Professionalism Law Society of Upper Canada 130 Queen St. West Toronto, ON SKU CLE17-0030501 Agenda 9:00 a.m. - 9:05 a.m. Welcome and Opening Remarks Jordan Atin, C.S., TEP, Atin Professional Corporation 9:05 a.m. – 10:05 a.m. The Initial Meeting and Instructions (30 minutes) Mary-Alice Thompson, C.S., TEP Cunningham, Swan, Carty, Little & Bonham LLP 10:05 a.m. - 10:15 a.m. Question and Answer 1 10:15 a.m. - 10:30 a.m. Coffee and Networking Break 10:30 a.m. - 11:25 a.m. Drafting (5 minutes) Ed Esposto, Aird & Berlis LLP 11:25 a.m. - 12:15 p.m. The Execution and Reporting Stage (25 minutes) Jordan Atin, C.S., TEP, Atin Professional Corporation 12:15 p.m. - 12:30 p.m. Question and Answer 12:30 p.m. End of Program 2 WILLS AND ESTATES Practice Basics 201 7 Chair: Jordan Atin, C.S., Atin Professional Corporation March 27, 2017 SKU CLE17-0030501 Table of Contents NOTE: Material is reprinted with permission. The Law Society of Upper Canada CPD gratefully acknowledges the efforts of the past and current authors and contributors. TAB 1 The Initial Meeting And Instructions ……………………. 1 – 1 to 1 – 28 Intake Information Form — Wills & Poas/Estate Planning ………………………………. 1 – 29 to 1 – 32 Mary-Alice Thompson, C.S., TEP, Cunningham, Swan, Carty, Little & Bonham LLP TAB 2 Basic Information Checklist……………………………………… 2-1 to 2-11 Jordan Atin, C.S., Atin Professional Corporation TAB 3 Memorandum to File – Smith Facts ………….…………… 3-1 to 3-3 Corina Weigl, Fasken Martineau DuMoulin LLP 1 TAB 4 Joint Retainer ……………………………..………………………… 4-1 to 4-5 Jordan Atin, C.S., Atin Professional Corporation TAB 5 Obligations of the Solicitor and the Estate Planning Retainer with Husband and Wife …………………………… 5-1 to 5-15 Ian Hull, Hull & Hull LLP TAB 6 Drafting Protection of Trustees ……………………………… 6-1 to 6-12 Sample Clauses ………………………………………….…………… 6-13 to 6-14 Jordan Atin, C.S., Atin Professional Corporation TAB 7 Annotated Will 2017 ………………………………………..……… 7-1 to 7-123 Roadmap for Drafting of a Trust in a Will ………………… 7 - 124 TAB 8 Don’t Send Out a Will for Execution by a Client Alone 8-1 to 8-6 Rodney Hull, Q.C., Hull & Hull LLP TAB 9 Will Review ………………………………………………………………. 9 – 1 to 9 – 2 Jordan Atin, C.S., Atin Professional Corporation TAB 10 Sample Reporting Letter …………………………………………… 10-1 to 10-10 Jordan Atin, C.S. Atin Professional Corporation TAB 11 Will Plan Meetings – a Model ………………………………….. 11 – 1 to 11 - 4 Jordan Atin, C.S. Atin Professional Corporation 2 TAB 1 WILLS AND ESTATES Practice Basics 2017 The Initial Meeting and Instructions Mary-Alice Thompson, C.S., TEP Cunningham, Swan, Carty, Little & Bonham LLP March 27, 2017 Wills and Estates Practice Basics 2017 Monday, March 27, 2017 THE INITIAL MEETING AND INSTRUCTIONS Mary-Alice Thompson, C.S., TEP Cunningham, Swan, Carty, Little & Bonham LLP There are a number of helpful resources for the actual preparation of wills and powers of attorney, and the estate planning that precedes it. The focus of this paper, however, is on all of the things that surround the actual drafting of wills and powers of attorney, starting with the first contact from a potential client. The emphasis is principally on practising defensively, but the best way to practise defensively in this area of law is to ensure that you pay careful attention to your clients and their needs. Of course, you also need to be able to make a living in your practice, so there is also an emphasis on practising efficiently at every step from that first call to the storage and retrieval of documents. Perhaps the most useful tools are checklists. At the end of this paper, you will find some resources for checklists that have been prepared for practitioners in this area. Use one of them, or create you own, but wherever you source your forms, make sure you use them. You can use a single checklist, or a series of checklists dealing with the following issues: • Information provided to a client in advance of the meeting in order to assist them in preparing • Information about the client’s personal circumstances and assets • Instructions for the disposition of the estate and the preparation of wills and powers of attorney Consider, in addition, having a “soup to nuts” procedure written down so that not only you but your staff and any newcomers to your office will be able to follow it. Apart from taking information about the client and taking instructions, there are number of other issues to be dealt with either before or during the first interview: 1 1 - 1 • Verifying identification. You may have assumed that since, as a part of the information- gathering process in a standard wills interview, you have identified your client adequately; that is, you will have the client’s name, address, telephone number, and occupation. You should, however, also verify identification. Although a typical will drafting and estate planning file will not in itself trigger the threshold for a requirement to verify identity,1 you may later be asked whether you verified the identity of the client. For example, if a Continuing Power of Attorney for Property is used subsequently on a real estate matter involving title insurance, the title insurer will routinely ask whether the lawyer who prepared the Continuing Power of Attorney for Property verified the identity of the donor of the power. Clients are well inured to the idea of producing photo ID and are unlikely to object to being asked for it. Keep a photocopy or scanned copy of the identifying documents you review. • Conflict searches. While conflicts may not often occur in wills matters, it is inadvisable to rely on your memory to pick up the possibility that, for example, your potential client is the subject of a debtor’s examination by one of your other clients or a client of the firm. • Compensation agreements. Where the client has decided to appoint a trust company as executor or as attorney under a Continuing Power of Attorney for Property, compensation agreements may have been signed before you begin the process of taking instructions and drafting. Make sure you obtain copies. • Timetable for process. My practice is to set an appointment date at the end of the first meeting with the client. Not all practitioners do this, but it is, I believe, very important to keep the process of preparing wills and powers of attorney on schedule. There are, of course, cases where failure to prepare a will promptly has resulted in the solicitor being found negligent, but even where there is no reason to anticipate an emergency, this is work that should not sit on your desk for months.2 Both you and the client will forget the 1 According to the Law Society’s on-line notes, you are required to obtain verification of identity “When you are retained to provide legal services to a client and you are involved in a funds transfer activity, that is, when you engage in or give instructions in respect of the receipt, payment or transfer of funds.” 2 There have been many cases, over the last 30 years or so in which lawyers have been found negligent for failure to hear a will in a timely fashion. See Martyn Frost, With the Best Will in the World: Negligence in Will Preparation (London: Legalease, 2000). 2 1 - 2 exact instructions or the rationale behind them, and delays inevitably mean lost time which cannot fairly be billed to the client. • Retainers. You need to inform your client of certain parameters, and have their signed acknowledgement in a formal retainer. Some practitioners send the retainer by mail to clients following the first meeting. Unless you have a particularly complex retainer, it may be possible to have it signed by the clients at the end of the first meeting.