THE LAWYERS WEEKLY
June 24, 2011 | 15
1. Failing to prepare
an estate plan
SUZANA POPOVIC- MONTAG
The main forms of estate litigation arise out of contested will
proceedings, court interpretations, claims for support and
accountings prepared by executors and trustees. The removal or
replacement of executors and
trustees, however, as well as the
variation of trusts or tax-related
litigation, cannot be ignored.
These types of proceedings are
also often the precursors to some
of the most emotional and expensive forms of litigation.
The following are the first five
of the 10 most frequent causes of
estate litigation (the remaining
five will appear in a later story).
IURII SOKOLOV / DREAMSTIME.COM
Do-it-yourself will kits contribute significantly to file loads of estate litigators.
A basic estate plan will often
include a continuing power of
attorney for property, a power of
attorney for personal care and at
least one will. In this way, testators
can plan for their incapacity and
direct how their assets are to be
administered during their lifetime
and they can thereafter direct how
the remaining assets will be dis-
tributed on their demise. In other
words, “all bases are covered.”
Notwithstanding the abun-
dance of information on estate
plans that is disseminated on a
regular basis, and despite the fact
that this information is readily
available to all, the fact remains
that more people die without
having created an estate plan
than one would expect. When we
consider how much time we
devote to building our estate and
managing our personal and
financial affairs on a day-to-day
basis, it really seems remarkable
that this is the case — that people
would let the legal and legislative
systems determine the distribu-
tion of their life-long legacy.
When this happens, however,
it is always to the financial (and
often emotional) detriment of the
testator’s estate and his or her
beneficiaries, those very persons
for whom one would otherwise
expect the testator to provide for.
Not surprisingly, therefore, those
same individuals may then be
motivated to take steps to correct
this purported “wrong.”
ticularly in the face of changed
personal circumstances and after
the passage of significant periods
of time.
come to fruition.
Reliance on skilled and experienced practitioners is key to creating estate plans that will implement and uphold testamentary
intentions. And presumably the
larger the estate and the more
complicated the matter, the better the trusted advisors should
be. We have all heard the old
adage “you get what you paid for,”
and this really is not the time to
cut corners.
5. Acrimonious extended
family members
ENJOY THE BENEFITS
3. Failing to recognize the need
for professional assistance
OF THE MOST ADVANCED WEB-BASED WILLS
The promulgation of “
do-it-yourself” will and power of attorney kits has contributed significantly to the file loads of estate
litigators. It is often amazing to
see the lengths to which people
will go to avoid hiring professional advisors to deal with their
financial legacy.
Although we can understand
and certainly sympathize with
this reluctance, these situations
are often prime examples of
where you can either “pay now or
pay later.”
sales@ldd.ca
1 800 363-2253
www.lawyerdonedeal.com
® WillPower Web and design and LawyerDoneDeal and design are registered trademarks of LawyerDoneDeal Corp.
4. Failing to obtain adequate
professional advice
2. Failing to maintain
a current estate plan
Although the creation of an
estate plan is, in itself, very desir-
able, it is not a one-time event.
We cannot underestimate the
importance of properly updating
powers of attorney and wills, par-
As an estate litigator, I have
seen first-hand the costs (both
emotional and financial) of an
estate-plan-gone-bad. It still sur-
prises me, however, to hear cli-
ents object to lawyers’ and
accountants’ fees and to use this
as an excuse to delay or short-
circuit the planning process.
After all, when you spend a life-
time amassing an estate, you
would expect to have a say in how
your legacy ultimately unfolds
and to see that desire eventually
Most litigators will tell you
that “step,” “second” or “in-law”
relationships tend to be a key
ingredient to the nastiest of
family and estate fights. Extra-
marital partners and children
and grandchildren born out of
wedlock tend to hold a strong
second place.
Suzana Popovic-Montag is the
managing partner of Hull &
Hull LLP in Toronto, practising
exclusively in the areas of estates,
trusts, capacity and fiduciary
litigation. She is also a specialized estate mediator and the
author of numerous articles published in academic journals.
www.lawyersweekly.ca/IHC
