Full Day Trusts and Estates Webinar
The benefits of both a proper estate plan and the use of trusts are numerous. But there are many complexities and challenges to getting the “right” plan in place, and a number of risks including legal challenges, not achieving the intended objectives and overpayment of taxes and other costs. Attend this session for an update on critical trust and estate issues that affect both your clients and your family. Join highly rated lawyers at WEL Partners and friends for a knock-out full day of important trust and estate issues. Key topics to be covered include capacity, elder abuse, will challenges, dependants support and Family Law Act elections, powers of attorney and related disputes, guardianship, drafting considerations, and fiduciary accounting and compensation.
22 Oct 2021, 10:00 AM
7 CPD hours
1. Elder Abuse Update (40 minutes) 10:00am – 10:40am
Mark McCabe of the Toronto Police Service and Kim Whaley of WEL Partners
Capacity is a complicated concept in that each task has its own standard, and often the issues involved where capacity is in question can be very complex. Because of the complicated nature of decisional capacity, and in the absence of statutory definitions to take the guesswork out of such matters, a professional working in practice areas touching on decisional capacity where capacity is at issue must be constantly mindful of the client's capacity to complete a particular task and the importance of knowing as much as possible about who the client is and why the client is seeking to undertake the particular task.
2. Capacity (40 Minutes) 10:45 a.m. to 11:25 a.m
Dr. Kenneth Shulman of Sunnybrook Health Sciences Centre
Changing demographics render the law as it affects older individuals increasingly important. Older individuals can also be particularly prone to legal abuses. Elder abuse, or the abuse of older adults, is often defined as any act or omission that harms a senior or jeopardizes his or her health or welfare.
According to the Canadian Department of Justice, financial abuse is the most commonly reported type of abuse against older adults. Financial abuse comes in various forms. It can consist of the improper use of joint bank accounts, forgery or abuse involving a Power of Attorney document, sharing an older adult's home without payment or sharing in expenses, misuse, appropriation, or theft of an older adult's assets, transfer of real property, ATM fraud and others.
3. Dependant’s Support & Family Law Act Elections (40 Minutes) 11:30 a.m. to 12:10 p.m.
WEL Partners –Bryan Gilmartin and Natalie Kodsi
As family dynamics in Canada have shifted away from the previous norm of a single “traditional” marriage towards an increasing number of blended families and common law relationships, the need for comprehensive (and adequate) estate planning has become a complex concern. As a result, the relationship between family law and estate litigation has also become increasingly dynamic. Where a deceased person fails to adhere to their statutory obligations, surviving spouses and/or dependants may seek to enforce on their legal rights as against a deceased’s estate pursuant to the Family Law Act and the Succession Law Reform Act or, if access to the provincial legislation is denied or provides an inadequate remedy, a variety of equitable claims can be made pursuant to the common law. This discussion will explore the options available when a deceased person has not adequately provided for his or her dependant(s).
4. Will Challenges (30 Minutes) 12:15 p.m. to 12:45 p.m
WEL Partners – Daniel Paperny and Rebecca Betel
In essence, a will represents a person's intentions with respect to the distribution of his or her estate upon death. As such, a will challenges typically only arise after the only person able to verify the validity of a will has passed away. A challenge to the validity of a will may be brought on a finite number of grounds by any person with a financial interest in an estate. In Ontario, this involves following well-established procedures set out in Rule 75 of the Rules of Civil Procedure. This discussion will explore these procedures, the grounds upon which a will may be challenged, and some important principles that have evolved by way of the common law.
5. Medical Assistance in Dying (15 minutes) 12:50 p.m. to 1:05 p.m.
WEL Partners – Paul Murphy
Medical Assistance in Dying (‘MAiD’) is the assistance provided by a doctor or nurse practitioner to a person, at that person’s request, that causes the persons death. This presentation will include a discussion of the history and issues that surround MAiD in Canada, through developments in caselaw before the Supreme Court of Canada, as well as changes to the federal Criminal Code since 2016 and ongoing. This topic is a polarizing subject for Canadians, and our Courts and legislature have strived to find a balance between competing interests
Lunch 1:05 p.m. to 1:30 p.m.
6. Capacity Proceedings (40 Minutes) 1:30 p.m. to 2:10 p.m
WEL Partners – Matthew Rendely and John Poyser
People, in general, are presumed to be capable to make decisions unless declared otherwise incapable of making certain decisions. Lawyers are often entrusted with helping people implement some of their decisions, and in so doing, they assess a person's capacity, sometimes without their even realizing they are making such an assessment. Courts, in turn, may be asked to decide whether an individual had the required capacity at the time that the person made certain decisions. It follows that a court would be most interested in the assessment a lawyer made of the individual's capacity. This discussion will explore these different standards of capacity and the factors to be considered when assessing capacity.
7. Powers of Attorney and Related Disputes (40 Minutes) 2:15 p.m. to 2:55 p.m.
WEL Partners – Daniel Paperny and Mark Handelman
The Power of Attorney document (the "POA") has long been viewed as one way in which a person can legally protect their health and their financial interests by planning for when they become ill, infirm or incapable of making decisions. The POA is also seen as a means to minimize family conflict during one's lifetime and prevent unnecessary, expensive, and avoidable litigation. In certain circumstances, however, POA documents may cause rather than prevent conflict. This discussion will explore the different types of POA documents, the duties of attorneys, the common abuses of POA documents, and a review of civil and criminal remedies available for those who are victims of abuse through the use of POA documents.
8. Guardianship (40 Minutes) 3:00 p.m. to 3:40 p.m
WEL Partners – Matthew Rendely and Daniel Paperny
Individuals who are unable to manage their finances and personal care and who are not capable of making their own financial or personal care decisions are vulnerable and may be susceptible to abuse. Guardianship, often a choice of last resort, is one means of managing the affairs of individuals under disability. This discussion will provide a broad overview of the guardianship regime in Ontario, the appointment process and powers and obligations of guardians under the various statutes, including an introduction to the rigorous accounting and reporting obligations of guardians.
9. Changes to Estate Law in Ontario (40 Minutes) 3:45 p.m. to 4:25 p.m
WEL Partners – Laroux Peoples
In this presentation, Laroux will provide an overview of the significant legislative changes coming to the Succession Law Reform Act beginning Jan 1, 2022. If you have clients going through life transitions such as separation, or if you prepare terminal returns or are the initial connection point when a client passes away you will want to know how these changes may impact the advice you give. Laroux will also provide an update on where our caselaw stands with regards to beneficiary designated assets in Ontario.
10. Fiduciary Accounting & Compensation (50 Minutes) 4:30 p.m. to 5:20 p.m
WEL Partners – Albert Oosterhoff
Taking on the responsibility of a fiduciary is an onerous and challenging task and increasingly one which risks being less than fully compensable. A fiduciary attracts scrutiny by virtue of the appointment itself. The role and responsibilities are further complicated by surrounding emotion, and often litigation commenced by those to whom the fiduciary is accountable.
The role demands trust, integrity, and transparency and exposes one to professional and personal liability. Increasingly, fiduciaries are asked to account informally and more formally before a court. Keeping proper accounts and being in a position to formally account is critical. This discussion explores the processes and procedures which are mandatory as well as guidelines for best practices.
About the Instructor(s)
Rebecca joined WEL Partners as a Lawyer in October of 2021. Prior to joining WEL Partners, Rebecca articled at a full-service law firm in downtown Toronto where she gained extensive experience in wills, trusts, estates and litigation.
Rebecca obtained her B.A. from York University in 2012, her M.A. from the University of Ottawa in 2016 and her J.D. from Western University in 2019. Rebecca was called to the Ontario Bar in June of 2020.
Throughout her time at law school, Rebecca competed in numerous oral advocacy competitions where she consistently placed as a top participant. Additionally, during law school, Rebecca worked at a free legal clinic where she assisted local residents with their estate plans and power of attorney documents.
Bryan Gilmartin , BMus, JD
Bryan joined WEL Partners as an Associate in June of 2020 after Articling with the firm.
Bryan completed the Dual J.D. program at the University of Windsor and the University of Detroit Mercy. Prior to law school, he obtained his Bachelor of Music in Jazz Performance from the University of Toronto with honours.
During law school, Bryan completed a legal internship with Wayne County Corporation Counsel in Detroit, Michigan, and served as Chair of the Windsor Law High School Outreach Symposium Committee. He also worked with the Veterans’ law clinic and served on the executive of the Windsor Fashion Law Society.
Bryan comes by his keen interest in estate litigation honestly. Growing up, living and working at his family’s Funeral Home in a small northern Ontario community showed him the importance of dealing with all end of life matters in a professional and caring manner. He recognizes the significance of this time in the lives of clients and enjoys navigating the challenges and sensitivities that accompany this area of the law.
When not practicing law, Bryan enjoys, travelling, performing music and cooking exotic and exciting foods for family and friends. When time dictates, he can be found on the golf course and has also been known to take part in the odd fly fishing trip.
Mark Handelman, BA, LLB, MHSc (bioethics)
Mark Handelman was called to the Ontario Bar in 1978 and holds an MHSc in Bioethics from the University of Toronto Joint Centre for Bioethics. Mark was first appointed to The Consent and Capacity Board in 1998 and served a ten year term, for 8 years of which he was a Vice Chair and Senior Lawyer Member.
In August 2019 Mark was reappointed to the Board. He was a part time Member of The Ontario Human Rights Tribunal from 2008 to 2018. From 2008 to 2019, Mark practiced elder law and health care law, frequently representing patients, their families and health care practitioners before the Board and in the Courts. His articles on consent and capacity law, mental health law, end of life-decision making and Powers of Attorney, some coauthored with physicians or bioethicists, have appeared in the popular press as well as peer-reviewed medical and legal journals. He is a member of Pro Bono Ontario and volunteers at Casey House.
Until 2002 Mark lived and practiced law in London, Ontario, where he also served as President of The Better Business Bureau, President of the London Chamber of Commerce, Director of The Ontario Chamber of Commerce, the National Council of Better Business Bureaux, The London Club and of Congregation Or Shalom.
He was one of the first members of Ontario’s Child Representation Program and wrote some 300 restaurant reviews and food articles for The London Free Press. Mark’s practice now focuses on preparing Wills and Powers of Attorney frequently for persons of diminished capacity. He is Counsel to the law firm Whaley Estate Litigation Partners.
Natalie joined WEL Partners as an Articling Student in August of 2021. Prior to joining WEL Partners, Natalie completed her Juris Doctor at the University of Windsor, receiving the “de Vries Litigation Award” for her outstanding performance in Civil Procedure, Wills, and Estate Law.
Natalie received her Honours Bachelor of Science from the University of Toronto with specializations in Health, Disease, and Bioethics. Throughout her schooling, she volunteered at Sunnybrook Hospital and a long term care home for dementia patients – two experiences which would not only solidify her passion for capacity and end of life matters, but instill in her an ability to handle sensitive situations with the utmost care and diligence.
Constable Mark McCabe, a native of Dublin Ireland, has been a police officer with Toronto Police Service since 2005.
Mark completed training at the Ontario Police College and was transferred to 41 Division. While at 41 Division, he worked in the primary response and traffic response units. He then spent six years in the Community Relations and Crime Prevention unit. During that time he started crime prevention initiatives including a seniors distraction theft awareness program called Operation Jingle, and also the Coffee with a Cop program.
Most recently he was assigned as the Vulnerable Persons Coordinator at the Community Partnership and Engagement Unit.
Mark has received numerous letters of recognition for his hard work in the community. He continues to assist victims of crime, develop crime prevention strategies, and build relationships in the community.
Paul joined WEL Partners as a Lawyer in 2021. Paul completed his Bachelor of Laws degree at the University of Sydney. Prior to law school, he obtained his Bachelor of Arts in Political Science from Western University. Paul was called to the Ontario Bar in 2012.
Paul is an experienced litigator whose practice focuses on estates, trusts and wills disputes. He has achieved success for his clients in contentious trusts and estates matters, and has appeared before the Ontario Superior Court of Justice and the Ontario Court of Appeal.
Paul is particularly well-versed in will challenges and defences involving issues of testamentary capacity, undue influence, as well as dependant relief claims.
Albert H. Oosterhoff, J.D., LL.M
Professor Albert H. Oosterhoff holds a BA and a JD from Western University, and an LLM from the University of Toronto. He was called to the Ontario bar in 1966 and practiced in London with Shepherd, McKenzie, Plaxton, Little & Jenkins until 1968. He taught at the Faculty of Law, University of Windsor from 1969 until 1972, when he joined the Faculty of Law at Western University. At Western he held the positions of Associate Dean (Academic), Associate Dean (Administration), and Acting Dean. He was awarded the title “Professor Emeritus” on his retirement in 2005. From 2005 to 2013 he served as an Adjunct Professor at the Faculty of Law, University of Toronto, where he taught Trusts.
Albert’s research and teaching interests are in Wills and Estates, Trusts, and Property. He has written numerous articles, comments, and books in those areas, regularly presents papers in Continuing Professional Development programs, and has written several reports and studies for the Ontario Law Reform Commission and the Uniform Law Conference of Canada. He was an Associate Editor of the Dominion Law Reports and Canadian Criminal Cases from 1973 to 2007, and Associate Editor of the Ontario Reports from 1973-1981 and 1983-1990. He also served as Editor-in-Chief of the Estates and Trusts Journal.
His texts include Anger and Honsberger, Law of Real Property, 2nd ed. (with W.B. Rayner) (Canada Law Book, 1985); Oosterhoff on Wills, 8th ed. (with C. David Freedman, Mitchell McInnes, and Adam Parachin) (Thomson Reuters/Carswell, 2016); and Oosterhoff on Trusts, 9th ed. (with Robert Chambers and Mitchell McInnes) (Thomson Reuters/Carswell, 2019). Albert’s texts and articles are cited regularly by all levels of the Canadian courts and the Trusts and Wills texts are widely used in Canadian Law Schools.
Albert is counsel to WEL Partners and provides opinions to lawyers and law firms on issues in estates, wills, trusts, and aspects of property law. In 2019 the Ontario Bar Association presented Albert with a Distinguished Service Award and the Award for Excellence in Trusts and Estates Law; and the Society of Trust and Estate Practitioners (STEP) elected him as an honorary member.
Albert enjoys singing. He also loves writing and making words on the page sing.
Daniel M. Paperny, BA (Hons), JD
Daniel joined WEL Partners as an Associate lawyer in September of 2018. Prior to joining WEL Partners, Daniel practised estate litigation at a large law firm in downtown Vancouver, BC where he focused on estate litigation, commercial litigation and insurance litigation. Daniel has appeared at the BC Supreme Court, the BC Court of Appeal and the BC Provincial Court.
Daniel obtained his B.A. from the University of Toronto in 2011 and his Juris Doctor from the Univiersity of British Columbia in 2014. Daniel was called to the British Columbia Bar in September of 2015 and called to the Ontario Bar in September of 2018.
Daniel was named as a Partner at WEL Partners in September of 2020.
Since joining WEL Partners, Daniel has appeared as counsel before various levels of Court in Ontario, and before the Consent and Capacity Board.
Daniel is a regular speaker for the Ontario Bar Association and Elder Abuse Prevention Ontario, presenting on a number of estate-related topics including the importance of making a will, up-to-date estate planning, powers of attorney and the prevalence of elder abuse in Canada and ways in which it can be prevented and remedied.
Daniel is a member-at-large on the OBA’s executive committee for Sole Small Firm and General Practice Section, and a member of the Trial Lawyer’s Association of Ontario and the Advocates Society.
Daniel is passionate about estate litigation and recognizes the crucial importance of this time in the lives of his clients. By utilizing technical skill, teamwork and compassion, Daniel seeks to alleviate the difficulties and stresses that often accompany litigation, toward achieving optimal results for clients. Daniel is always looking for innovative ways in which to reach solutions for his client, while at all times remaining mindful of the value, costs and pressures of litigation.
When not practicing law, Daniel enjoys running, cycling and spending time outdoors with his wife, daughter and their pet Chihuahua.
Laroux PeoplesLaroux operates a remote law practice based out of Toronto, Ontario devoted to wills, estates and trusts. Laroux is a member of the Ontario Bar Association’s Trusts and Estates Section and regularly provides presentations to various community groups on estate planning and administration. Prior to opening her own practice, she worked for the Ministry of the Attorney General as an Assistant Crown Attorney. Laroux has a J.D. from the University of Windsor Faculty of Law, an M.A. in Immigration & Settlement Studies from Ryerson University and a B.A. (Hons.) in Political Science from the University of Toronto.
John E. S. Poyser, BA, LLB, TEP
John Poyser is a senior lawyer with WEL. He has been a lawyer since 1987 and, over the last twenty years, has limited his practice to matters arising out of gifts, wills, trusts and other wealth transfers. He obtained his Ontario call to the Bar in 2016. He is also licensed to practice in Alberta and Manitoba. His Ontario practice through WEL is limited to estate litigation. He challenges and defends the transfer of wealth by will, gift and trust, and provides consultations to lawyers from other firms who are pursuing legal action in those areas.
Nationally, he is a past chair of the Wills, Estates and Trusts Section of the Canadian Bar Association (the “CBA”), and a past Deputy Chair of the Society of Estate and Trust Practitioners (“STEP”). Internationally, he sat as a member of STEP’s Worldwide Council from 2013 to 2016.
As an author, he wrote Capacity and Undue Influence, an eight-hundred page textbook published by Carswell in 2014. It canvasses the law relating to the transfer of wealth by will, gift, and trust, and helps lawyers and judges deal with attacks on those transfers. As a prior project, he coauthored ten editions of a textbook for Carswell entitled The Taxation of Trusts, a Practitioner’s Guide, dealing with taxation and planning issues relating to trusts and estates. John is also a regular contributor of articles in The Estates, Trusts and Pensions Journal.
He was the Founding Editor of The National Concordance, a compendium assembling and comparing succession laws across Canada, jointly published on-line by the CBA and Westlaw ECarswell, and continues in the role of Managing Editor for that publication. He serves as an Associate Editor of The Estates and Trusts Reports.
As a lecturer, he speaks regularly for law societies and bar associations across Canada. John has two children, and one wife. He loves Las Vegas, hates mosquitoes, and has been a regular driver for Meals on Wheels since 1995.
Matthew Rendely, BA (Hons), JD
Matthew Rendely is a Partner at WEL Partners, where he practises exclusively in the areas of wills, estates, trusts, powers of attorney, guardianship, and capacity related litigation. He is a passionate advocate for his clients.
Since being called to the Ontario Bar in 2015, Matthew has worked on matters at all levels of court, including the Supreme Court of Canada.
Matthew received his Bachelor of Arts with an Honours and Specialization in History at the University of Western Ontario. He then travelled to Australia, where he obtained his law degree with honours at Bond University.
Matthew recognizes the need for volunteer legal counsel. He has volunteered as duty counsel with Pro Bono Law Ontario at the Superior Court of Justice and the Small Claims Court in Ontario. Matthew also participated in the HIV & Aids Legal Clinic Ontario (HALCO) Will and Power of Attorney Clinic.
Dr. Kenneth I. Shulman
Dr. Shulman graduated from the Faculty of Medicine, University of Toronto. He did his postgraduate training at the University of Toronto and the Institute of Psychiatry in London, England and completed a Master’s degree in Health Policy and Management at the Harvard School of Public Health. He is Professor of Psychiatry and was the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Dr. Shulman has had a longstanding interest in testamentary capacity and related capacities as well as vulnerability to undue influence. He has been qualified as an expert witness in Estate matters in Ontario, Alberta, Texas and Bermuda. For several years, he co-chaired the task force on Testamentary Capacity for the International Psychogeriatric Association (IPA). Together with colleagues he has published several papers on testamentary capacity in international journals, including an update on Banks v Goodfellow in the Canadian Bar Review. He is a frequent presenter at legal and finance continuing education conferences on Estates and Trusts.
KIMBERLY A. WHALEY CS, TEP, LLM, Founding Partner, WHALEY ESTATE LITIGATION PARTNERS (litigation firm in Toronto, practicing throughout Ontario and repeatedly ranked by Canadian Lawyer as one of Canada’s Top 5 & 10 Boutique Trusts & Estates Firms), practicing in the areas of Estate, Trust, Fiduciary Litigation including Power of Attorney Disputes, Fiduciary Accounting Applications, Guardianship, Applications for Dependants’ Support, and Elder Law.
Kimberly is designated as a Certified Specialist in Estates and Trusts Law by the Law Society of Ontario; and is repeatedly recognized as a leading practitioner by Chambers, Lexpert, Lawday, Best Lawyers, Martindale-Hubbell and Canadian Lawyer.
Kimberly has held various executive board positions with the Society of Trust and Estate Practitioners Worldwide (STEP) holding the designation, TEP. In 2019 Kim was presented with a book prize at the June STEP Toronto National Conference for the session she planned and presented with colleagues on capacity. In September 2019 she was presented with the award of STEP Toronto volunteer of the year.
Kimberly is a Past Chair of the OBA Estates ad Trusts Section Executive, CBA Elder Law Section and immediate past Chair of the OBA Elder Law Section and has been on other OBA/CBA executives and committees over a number of years.
Kimberly is a frequent lecturer at various Universities and has been an Adjunct Professor at the University of Toronto, Queen’s University and Western University.
Kimberly regularly presents and chairs programs with the Law Society of Ontario, and the Canadian and Ontario Bar Associations as well as within the community, at community centers, libraries, hospitals, Toronto and Ontario Police and with various other professional, governmental and not-for-profit organizations.
Kimberly is an active leader in the community in her elder law initiatives serving as Civilian Co-chair on a Toronto Police Services Consultative Committee, as well as a reappointed member of the Ontario Securities Commission Seniors Expert Advisory Committee.
Kimberly is an invited member of The International Academy of Estate and Trust Law (TIAETL), and a Fellow of the Canadian Center for Elder Law (CCEL).