In this episode of the Polestar Podcast by VELA Wealth, host Kevin Parton interviews Krista Simon, an Estate Litigation Lawyer and Partner at Hammerco Lawyers. In this conversation, they discuss the intricacies and challenges within estate litigation and what can be done to avoid complications. Krista outlines some current trends that often lead to litigation, such as blended families, estrangement and stale-dated wills and explains how these complex issues can lead to legal battles. Listen in to be captivated by stories that illustrate the importance of creating wills and estate plans that are both comprehensive and just. Krista also highlights how the Wills, Estates and Succession Act (WESA) plays a crucial role in protecting beneficiaries and families from unfair estate plans.
Key highlights of this episode:
- Learn about essential considerations for building your estate plan and gain insights into the key trends that lead to estate litigation.
- Discover WESA, its significance, and its purpose in BC. You will also hear compelling stories of how this Act has been enforced and the outcomes of these proceedings.
- Gain insight into navigating the challenging waters of estate litigation and learn what to do if you find yourself in this situation.
- Explore Krista’s approach to law, where she prioritizes compassion, understanding and fairness in all her work. Discover how this approach has proven invaluable in building her cases and helped her to support her clients effectively.
About the Guest – Krista Simon
Krista Simon is a Partner at Hammerco Lawyers specializing in Estate Litigation, Sexual & Elder Abuse and Personal Injury. Krista has 20 years of experience in civil litigation and joined Hammerco in 2004. She was also the first woman to join the partnership team.
Krista is a lawyer who does not shy away from a challenge. She is both strategic and engaging and gets involved in every stage of a claim and manages the litigation process – from investigating and coordinating rehabilitation and medical benefits, to consulting with executors and beneficiaries. For Krista, legal strategy and solutions are always top of mind.
A formidable litigator, Krista understands that not all cases require an adversarial approach that ends in a trial. She is also highly skilled in alternative dispute resolution, believing that mediation is often the best way to transform challenges into the best outcomes for her clients.
Learn more about Krista at Hammerco Lawyers LLP and get in touch with her via email, ksimon@hammerco.ca.
About the Host – Kevin Parton
Kevin Parton, CFP professional, specializes in personal and business financial planning, tax reduction, and estate planning. Kevin diligently concentrates on client education as a powerful strategy for building financial certainty. As no financial situation is the same, Kevin and his team monitor clients’ plans and implement personalized strategies to reduce their personal and corporate taxes, and protect their income, assets, and loved ones against the financial consequences of a serious illness, injury or death, ensuring clients maintain financial certainty and peace of mind. To read more, please visit the VELA team page.
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The Podcast Transcript:
Kevin Parton:
Hello and welcome to the Polestar Podcast where we bring together financial experts, visionary entrepreneurs and passionate philanthropists who share not just their expertise but also their personal stories, reflecting on remarkable experiences and offering some inspirational insights. I am Kevin Parton, and your host for this episode and I am really excited for our guest today.
Welcome and thank you for being here, Krista Simon.
Krista Simon:
Thank you so much for the invitation.
Kevin Parton:
I have the privilege of knowing one of your business partners, Morgyn Chandler. She was on our podcast late last year and initially the intention had been to dive into estate litigation, one of the spaces your law firm fills. And then we got excited about her journey as a lawyer and as a female entrepreneur that we barely scratched the surface of estate litigation. She then kindly suggested that you could come on the podcast, and we could dive more deeply into the subject.
Before we do that, I would love to get to know you a little bit. Would you be able to share a little bit about your journey into law, all the way up to where you are now?
Krista Simon:
Oh goodness. I’ll try to distill this in just a few minutes.
Again, thanks for the invitation. I do always appreciate the opportunity to speak to other professionals in this ecosystem. You are one of the professionals that my client is hopefully working with, so I’m happy to answer what might be frequently asked questions from your own clients in terms of my journey.
I am one of those funny lawyers who always wanted to be a lawyer from a young age. I saw lawyers as helpers. And that was a very simple way of thinking about it as a child. But then I think I really took that on. And as a helper, or a lawyer in a helping profession, I really see myself as amplifying the voices of people who are facing challenges.
It’s not giving a voice to the voiceless, it’s amplifying and lifting people up, being an advocate. And I think estate litigation is an extension and a progression of all the things that I’ve done in my career; pushing for what is right, defending the rights of people who are being challenged, protecting what is rightfully belonging to my clients.
I practice personal injury and that encompasses also some sexual assault and abuse litigation. And so, it’s very natural for me to be an advocate for people who are unexpectedly in a position to have to fight or to defend something. And as a lawyer, I’ve always represented individuals. And whether or not those individuals present as vulnerable people, people in litigation have all kinds of vulnerabilities and estate litigation is about families and peeling back the layers of family stories and family histories.
I’ve been with HammerCo for over 20 years. I started as a young lawyer in an associate position and I’ve been a partner for more than 10 years. And so, given my longevity with the firm and my leadership role as a partner, I feel like I’ve had considerable input into how we’ve grown and built our team and our brand to this point. And I think, Morgyn may have said that she found her people. I think we all gravitated towards each other and our partner group right now is a very strong and united group.
In terms of myself, I consider myself to be very solutions focused. I try not to get stuck in the dispute. I want to find a way through it and passed it. Long, protracted litigation is rarely beneficial to anyone. And I think this also aligns or arises from my deeply held sense of fairness. And so, I think when even when I was a young child and I wanted to be a helper and I saw lawyers as helpers, I think that’s where my sense of fairness was really percolating. I earned my law degree almost 23 years ago. I then practiced for almost 20 years and then I went back to school, and I earned a Master of Law with a focus on dispute resolution. Up to that point, I had done some additional coursework at the Harvard program on negotiation and Pepperdine Strauss before that, I’d really focused on mediation and negotiation. And so, my master’s program was really a culmination of that focus on solutions.
I think there is a misconception that litigators are all about the fight, but I really think that misses the point. But I should say I’m a very proud trial lawyer; I’ve done probably almost 40 trials over the course of my career in front of judges and juries. And so, when it’s time to go before the judge and tell the story and argue the law, I am prepared to do that, and I enjoy that part of my job. But more often than not, it’s really about negotiating. It’s about finding a way through the dispute to the solution. I also think protracted litigation doesn’t always serve my clients’ interests.
And so, as an estate litigation lawyer, and in all the other areas of my practice, I have to be really people focused. If you lose sight of the people and their best interests and only focus on the law and who’s right and wrong, I think the real intent of the law, the legislation itself, is really lost.
Kevin Parton:
To pick up from that point you mentioned, I feel like where there may be conflict in litigation is where there’s the idea that there is a winner and a loser, or it’s perceived that way.
And like you said, sometimes there’s ego in there and sometimes there’s sort of a desire to be right. And the objective truth may not necessarily be there or there’s nuance, as I’m sure you’ve learned through the process of negotiation, that it’s not necessarily a 0-sum game, but it can be treated as a 0-sum game. If there’s emotions involved especially, there’s the feeling that in order for someone to win, the other must lose. So obviously with all that nuance and all of the emotion involved, estate litigation is an exciting area of law to practice, I would imagine.
So one of the things I’m excited about this episode is, as you mentioned, to hear your take on some of the common questions that come up, but also to be able to hear stories and gain more understanding of this area. Because it is an area that we spend a lot of our time working in, in the wealth management space. And one of the areas that we wanted to start is, we refer to it, as estate planning. You and I have had a couple of conversations now where I refer to it as such and you’re very clear to point out that you are not in an estate planning law firm, you work in an estate litigation law firm. So maybe that’s a good place for us to start.
In the experience that you have, where does estate planning serve as a major benefit, or have you seen cases where a lack of estate planning has led to complicated estate litigation?
Krista Simon:
So, I’m going to take a step back. I know you’ve got a very direct question but let me set the stage for you. I did a presentation last year and I entitled it; When there’s a will, there’s a way? Because notwithstanding all the best planning or even good planning, there can still be disputes and challenges. Because even a will or plan, that on the face of it seems very fair and equal, can still give rise to a dispute. And I think to understand where planning and litigation intersect, it is important to understand some of the drivers and the trends that are sort of front and center in estate litigation. So, throughout our conversation, maybe just keep these things in mind because these are the motivators, this is what’s driving people.
We are now amid the largest wealth transfer in modern history, so there’s a lot of money there, a lot of assets out there. People are living longer, our elders are more vulnerable in their later years, but beneficiaries are also older and, in some cases, can have financial needs that are almost in line with their parents, who are still living. High property values, especially in Metro Vancouver, are adding to expectations of inheritance. The high cost of living is another factor, the younger generation now are not as financially successful as their parents. And so, some people are planning on the basis of their inheritance. Families are living apart, children don’t see their parents as often. That’s a problem when you’ve got new friends and new companions and new caregivers who family members have never met before. And again, elderly people are very vulnerable to suggestion.
We’ve got blended families, we’ve got evolving societal norms with respect to religion, sexual orientation, financial planning, and all other life choices. And then on top of that, you’ve got really easy access to information about legal rights. So, people have more information, and that sets up expectations. It can set up some misinformation as well.
So, in terms of planning, you’ve got all of those things in the works. I think also estate planning, like financial planning, is a very personal thing. But when that estate plan comes into action, it becomes a more public thing among the beneficiaries and the family members. And so, in terms of planning, the best plans are plans that are communicated and revisited over time to meet the needs of the will maker, but also perhaps to meet the needs or the expectations of the potential beneficiaries.
Kevin Parton:
So, lots there. Which gives us a whole bunch of places to start. Maybe we’ll start at the most basic sense. How often should people review their estate plan? Should the review be regular? Or only after specific triggers? When do you think warrants a review of the plan?
Krista Simon:
Again, I’m not an estate planning lawyer. And so, a solicitor, an accountant or a financial planner might have different views. But I think revisiting an estate plan, at least every three to five years, even if there are no changes or triggers for that review. Just to take it out, have a look at it and make sure it still reflects your intentions.
But in terms of particular triggers; any change in life, marriage, divorce, additional children, an inheritance of your own, acquiring a new business, selling a business, acquiring any new assets. Maybe your wealth has grown, and you want to consider a more complex plan for tax planning purposes. I think having a plan is great and that’s step one, but if your plan sits in a cupboard for 10 or 20 years, it has become stale-dated in most cases.
Kevin Parton:
It’s really interesting because planning and litigation are two different sides of the same coin. I think where the value in this conversation can be found is a lot of times from a planning perspective, you don’t necessarily see what happens on the other side. You can say, well, let’s meet regularly. But it’s really important, because on the litigation side, you made a will, it wasn’t reviewed enough, and we know that because now we’re in litigation and had it been reviewed more frequently, perhaps it would result in a different outcome. But I think you get to see where the gaps in the planning process exist, because that’s where they’re getting poked.
Krista Simon:
Yes, and it’s really nuanced. Some of these cases hinge on something very specific to a particular family or a relationship within a family. It’s not a black and white analysis. I very much live in a gray area. And there’s lots of misconceptions about estate planning.
People think it’s only for the wealthy; it’s only for older people, they assume their family knows what they want and will do the right thing, whatever that means, people think it’s too expensive. They think they have designated beneficiaries in some of their investments, and so that speaks for what they want done with their estate. People also assume that an estate plan is only will. But of course, there are a number of different investment vehicles and insurance products that go into an estate plan. So, there are a lot of misconceptions, but also there is a fear of talking about death and dying, that’s still a bit of a taboo subject.
Also, among very wealthy individuals, oftentimes they don’t discuss these things with their children because they don’t want to demotivate them from working hard over the course of their adult life and accumulating their own wealth and assets.
Kevin Parton:
Communication is huge, and it’s difficult to articulate what one’s wishes are. And it might be helpful to take the time and space to communicate while you’re here and let people know what you would like to happen. That in and of itself isn’t something that many people are trained to do or have the experience doing or want to address.
What I want to jump into now is discussing some of the major trends you’ve seen. What are some major trends in estate disputes that you’ve noticed over the years?
Krista Simon:
The most common claims in estate litigation arise from probably three different areas.
One is challenging the validity of the will. So that’s where the claim is essentially to toss out the will. And the result is either you revert to a prior version of the will, or if there was no will or no prior valid will then it becomes an intestacy, meaning a case where there was no will. Then we follow the legislation. And the governing legislation is the Wills, Estates and Succession Act; which I’ll be referring to as WESA.
WESA also permits wills variation claims. So that’s also a very common area of litigation and that’s not where you’re challenging the validity of the will. We accept the will is valid, but it must be modified or rebalanced so that the distributions are fairer or more adequate or include someone who has been left out.
And then there are disputes arising from estate assets. So, the question is what are the assets of the estate? That often arises from jointly held bank accounts or property that’s held in a joint tenancy. And the question is, who’s the real owner? And a legal question becomes whether there is a constructive or resulting trust, or whether the remaining or surviving joint owner is really the legal and the beneficial owner.
Within those categories, the two main ways to challenge the validity of a will is through proving a claim of undue influence or lack of capacity in a will’s variation claim. There are a number of ways to attack the distribution. Before my next point, I should say with respect to wills variation claims, it’s very unique to British Columbia. There really is no other jurisdiction in Canada that has such a claim, WESA is provincial legislation. So, when we talk about estate litigation, it really goes province by province in terms of what a person’s right is to challenge the will or the estate plan. Will’s variation claims can only be brought by spouses or biological or adopted children, and those claims must be brought within 180 days of the grant of probate. That’s not six months, that’s exactly 180 days, so you have to count very carefully.
Kevin Parton:
Do you find that 180 day mark ends up posing problems in cases whereby people are unaware of that time frame and a claim isn’t brought up in the right amount of time because of a misunderstanding?
Krista Simon:
Sometimes. I think more and more people are better informed. And they know that there’s a problem, and oftentimes we’re consulted even before the grant of probate has been issued. So, it’s still a challenge but like I said, people have better access to information now.
In terms of those different claims, that’s where we see those very interesting cases about who is a spouse, and even if you can have multiple spouses. And then that’s also where we see claims of children who have been left out, cases on estrangement, cases where there’s a favorite son or a favorite daughter, or where cultural norms come into play, where sons are preferred over daughters. And it really gives some insight into how families are functioning and how our courts are recognizing changing societal norms. And notwithstanding the fact there are some ideas within families or with individuals about what is fair and what is adequate, our court is there to correct those views, whether it’s a cultural norm that’s outdated or whether it’s estrangement, that’s not the fault of the child who’s claiming the variation.
Kevin Parton:
When it comes to estate planning, for instance, in those complicated situations, such as blended families or non-traditional relationships. How much can be addressed in advance and how much uncertainty remains that cannot be avoided, potentially leading to litigation?
Krista Simon:
I think there’s never any guarantees, but it’s not often that you could ever exclude your spouse completely from your estate. And it’s not often that you can exclude a child from an estate. It would have to be fairly extreme circumstances. And we still see this happening where people are leaving children out of their wills and sometimes, they give a reason, sometimes that reason is valid and sometimes it’s not.
There was a case from last year, I’ll give you an example.
The deceased passed away and he had three daughters. They were a family that originated from out of country. And they had three daughters in different times of their life and at different stages of financial security. One of the daughters was given away to an aunt and uncle to be raised. She had a lot of confusion about this, even into adulthood, having felt abandoned. And that situation turned out not to be great, there was some domestic violence in the home. But the other two girls grew up with a relationship with their father. Some had been sent away and came back again and for them, the family dynamics were different. The daughter, who had been given away to be raised by an aunt, in the will she was described as a niece and was given a very small specific gift. And the two other daughters were given larger gifts. So, she challenged the will. And initially, the other two daughters denied she was a daughter and said she was a niece, and that argument was abandoned later on.
Ultimately, the judge decided that each of the daughters should inherit equally, and if there was an estrangement throughout the course of their life and if they didn’t have relationships with each other or with the parents or the father, it wasn’t her fault. That there was a responsibility on the parent to have a relationship, to create or forge relationships among all of the sisters. And it was really unfortunate and quite sad that it ended up the way it did.
That’s a really specific case. But the principles that arise from it, I think we are instructive when people come for a consultation because it’s helpful in asking questions and recognizing the nuances of every single different case.
Kevin Parton:
That’s actually an interesting point. When someone comes from a consultation, at what point are they in this process when they are walking through your door? What happened up to that point and where are they seeking advice going forward?
Krista Simon:
At every point in the process, we are sometimes consulted even before a person has died. Because a beneficiary or potential beneficiary has found out about what is in the will, and they think it is unfair.
It might be at the point where they are advised that the person has died and that there’s an application for probate and they get the will, and they read the will and they’re very confused by why they are treated as they have been.
It could be after the grant of probate. We are consulted not only with people who are looking to challenge a will, but also defendants. So, people who were satisfied with their gift under the will and now they are left to defend it. Or we’re consulted by executors, who must also defend claims. Now when I say defend claims, sometimes families can come together, and they can recognize that something unfair has happened.
There are folks that come to us and say, “Look, we’ve read the will, and we think it’s unfair and we think it should be an equal distribution. Or we think it should be a little bit more over here. Can you help us document this agreement? Can you help us navigate just getting to a place where we feel comfortable?” Not all families are battling it out. Some families recognize that a parent has been unfair for no good reason, and they can work it out.
On the other hand, that’s a smaller percentage of the people who are consulting with us. Sometimes there are people who challenge a will, and they shouldn’t be successful. There is another case last year where there were multiple children and grandchildren that were named in a will and the claimant was a son who felt he should get more because his financial situation was more precarious than the other children. And sometimes that is a valid reason for varying a will. However, in this case, it’s unfortunate that all your dirty laundry is aired, so you can read it in a public manner. But in this case, the court found that the claimant’s poor or precarious financial situation was of his own doing. There was mention of him going to Vegas and blowing a bunch of money. And so, the court said, “Look, in this case, this was your own doing. The will is fair.”
There would be other cases where someone would come and say “Look, my brother is a very successful neurosurgeon, and I have health issues and I’m just receiving a disability pension. This isn’t fair.” And in those cases, the court may very well rebalance the distribution under the estate.
Kevin Parton:
So, this is my curiosity comes. In part of the consultation process, if someone is preparing their own estate plan and they’re looking to preemptively figure out where holes can be poked in it, would they come to you and ask what might arise and then use that to go back and reassess?
I’m thinking of cases in which I’ve heard people have been creative to move things outside of the estate, to circumvent WESA and the rules that exist. As far as a preemptive planning process, would you consult on that? And perhaps it’s not done in a negative way to say someone is trying to leave someone out of the will. But if someone’s saying they want to avoid estate litigation as much as possible, they understand the nuance and the emotions involved, how can they structure things so that once they’re gone, there aren’t things that are that are brought to light that they didn’t intend.
Krista Simon:
So, we sometimes get calls from people about that but that’s absolutely in the lane of an estate planning lawyer. Because part of their training and their knowledge and their experience is to plan good and sound plans and they will advise someone, if they want to cut a child out of their estate. I would expect that a good estate planning lawyer would say “Look, this is going to be a problem. Just so you know.” And maybe they attach a letter, maybe there’s some explanation for it, but it’s probably still going to be a problem.
And depending on the nature of the estate, there are some very sound estate planning tools; alter ego trusts, putting money into life insurance policies. There are definitely ways, but those are expensive things to do. As I said, sometimes people do transfer their property into a joint tenancy. One could be to avoid probate fees, or certain taxes. Or it could be to avoid your least favorite child from inheriting. But you have to do that correctly. You must document the gift properly. Otherwise, the assumption is it’s held on a resulting or constructive trust, and it will form a part of the estate.
Kevin Parton:
Okay. Well, maybe that’s for another episode. We could have an estate planning lawyer on here to look at that different angle. Let’s get back to the other side then. Estate disputes often involve deep emotions. And as you mentioned there’s a technical and formal side, but then there’s the human side of things. How are you helping clients manage these emotions, and how do you differentiate between the law and understanding human behavior?
Krista Simon:
One of the things that I try to do, is allow my clients to tell their story. And oftentimes their family story goes back generations. And it’s not just the siblings that are in a dispute now, but it’s parents, aunts and uncles, grandparents. It’s, in some cases, their immigrant story, and that’s connects to why certain assets are so important. So I think allowing people to tell their story, to validate that there is a deep hurt that goes along with either being disinherited or that feeling that they’re being treated unfairly. Being an executor is a difficult job while you’re grieving. And often times an executor is either a spouse, it’s one of the children, sometimes it’s co-executors, which I would not recommend to anyone.
Kevin Parton:
And why may that be the case?
Krista Simon:
Because co-executors have to be on the same page, they cannot diverge in how they want to handle the estate.
Kevin Parton:
Okay.
Krista Simon:
Sometimes there are exercises of discretion, and if siblings don’t get along. That’s not something that happened in the last five years that happened because “Sally stole Bobby’s Tonka truck, when he was 10.” They’re really deep seated emotions. But I also remind my clients that I am their professional advisor. And when I look at their family story, I’m also trying to give them some advice to cut through the emotion. And that’s a really important role for me.
I want to be empathetic, as I said, my practice is very people focused, solutions focused. And so, I analyze the dispute from all of the polar opposite perspectives and then I’ll do a cost benefit analysis. And compromise doesn’t have to be a dirty word. Risk is a real thing when it comes to going to trial. I’ve read so many cases where I thought the opposite result was going to occur or I saw in so many other cases, a different result. but there’s one fact that tilts the scale. It’s again, the nuances of a family story and the family dynamics. Sometimes going to a mediation is helpful. Sometimes we allow our clients to engage in what I call “productive venting”. Just get it all out, let’s not be afraid. But let’s also allow the dust to settle and make some reasonable and emotion-free decisions.
Because at the end of the day, two things: this is about money, but it’s also about relationships. And you may wish to preserve relationships with your family members. But maybe siblings don’t, but there’s another generation of cousins who will have an opportunity to have family relationships and sort of carry on. And I think people need to be mindful of that as well.
Kevin Parton:
I guess that raises the point. You talked about executors and recommending against having co-executors because they may not agree on everything. From a cost benefit analysis or just an organizational analysis, does it make more sense to have a person, a spouse, or a child as an executor? Or would it make more sense to have a firm be the executor and sort of outsource that?
I see very frequently this assumption that someone I love is going to want to execute my estate, or it’s easier to do that, without thinking of some major considerations; The time that goes into it, the emotional component of it, and oftentimes the complexity.
So, the question is, does it make sense to have a legal third party execute the will or the estate?
Krista Simon:
I think there are a couple of things in there. I would recommend that executors always have a lawyer to assist them with probate and maybe even to assist them beyond probate with the distributions under the will. Sometimes I see people just have a lawyer to get them to the point of grant of probate and they say thank you very much, now I will deal with everything else. Actually, I think you’re probably well served having that legal guidance throughout. In making sure you have an accountant, that tax returns are filed, there’s a clearance certificate from CRA and just helping to navigate some of the reporting and the accounting requirements because there is a duty to the beneficiaries to provide them with information. I think a different solution is to have a trust company, for instance, be the executor and that’s something different than whether or not to work with a lawyer. It’s actually handing over the administration of the estate to a company. It really depends on the value of the estate. Companies probably will charge more of a fee than an executor will. Not always will a family member executor charge a fee to the estate, especially if they’re a beneficiary. So, I think there are some financial considerations. If it’s a large estate and it’s a really tangly dispute, sometimes the executor is a beneficiary and so for them to just step aside and hand it over to somebody who is neutral is a really good option.
Kevin Parton:
So just to summarize that. In almost all cases, it’s advisable for the executor of an estate to seek legal guidance throughout the whole process so they’re not left trying to figure it out on their own. And in more complex estates, it may actually be prudent to get a trust company to do it for complexity’s sake and just to absolve yourself of the responsibility, if you are also a beneficiary.
Krista Simon:
Yes. I think that’s fair.
Kevin Parton:
Okay. Moving onto cost benefit analysis of litigation. For a lot of people, as you said, one of the misconceptions is that it’s expensive. But compared to what? How does that process work? How are you helping clients navigate through the expectations or understanding what their expectation is. And when in the process do you advise to proceed or not to proceed with litigation or to find resolution and compromise?
Krista Simon:
It’s all over the place. There is no cookie cutter approach, I will say. Firstly we try to make our legal services accessible, so our consultations are free of charge, and we have different fee structures available depending on the nature of the case.
I work with a team of lawyers, we all have a range of experience and we try to make our services cost effective. We understand that most people don’t have a litigation budget and so this is all new. Whether you are unexpectedly challenging a will or an estate or you unexpectedly find yourself in a defensive position. Where possible, we do offer contingency fee arrangements, which is a percentage arrangement, it’s a deferred fee. But often it is a traditional retainer and hourly fee-based arrangement.
So we have those financial discussions right from day one. One of the most important questions is what is the value of the estate? Is this a $1 million estate or $10 million estate or is it a 100,000-dollar estate. And we want to give our clients perspective right out of the gate. What are you fighting about and is it worth it?
Because if your upside is an extra $20,000, I don’t want to diminish that amount of money in the hands of any person. When you start factoring in the emotional investment, the financial investment, the time investment, maybe it’s not worth the challenge. Maybe you take the money, you invest what you get, and you make it grow instead of risking it with litigation. On the other hand, if it is a very valuable estate, if it’s an obvious case of unfairness. Then you know, we’ll put the pedal right to the gas.
We don’t always start out with full on litigation because of the timelines. So, for wills variation claims, it’s 180 days from the grant of probate. Sometimes people are not coming to us until a month or two or three before that limitation. So, we need to be mindful of that and we commence litigation. But that doesn’t mean that we have to go in guns a blazing. I’m still keeping my eye on a potential solution and it might take time, it might come in steps and stages, but most often we are able to craft some kind of a resolution and a solution.
On the other hand, for some clients it really is a 0-sum, and it is a win or lose. And it’s important for them to proceed and to go to document discovery, stage examinations, court applications and then ultimately a trial if necessary.
Kevin Parton:
So, it’s incredibly nuanced, there is no cookie cutter answer, everything is very unique. Which I guess further emphasizes the point that you need to be speaking to someone who knows what they’re doing and has been in this arena for a while to give you that guidance. I think one of the benefits from talking to someone with 20 years of experience and sometime in this area is hearing some of the stories.
Do you have some highlights of cases that you’ve read about or that you’ve actually been part of where you learn something really interesting or you think would be important for our listeners to hear so that they could get a better idea of exactly what it is that you do or where estate litigation plays such a meaningful role.
Krista Simon:
It’s hard to know where to start, frankly. When it comes to telling stories. I think as an overarching theme, it’s really important to get the stories and to ask clients about the family history. I think families are fascinating, people’s family histories are fascinating.
I’ll avoid talking about my cases to mainly protect the privacy of my clients. But there are some cases that people typically find really interesting. There’s a case of dual spouses and a lot of people may have seen this in the news a few years ago.
A husband dies, he dies without a will. And you would think that where there is no will and you have to abide by the intestacy provisions of WESA, it would be easy. There’s a formula; if there’s a spouse and no children, it’s this formula. If there’s a spouse and children, it’s that formula. ‘Easy peasy’.
I have actually been involved in cases where it isn’t that simple. It can be very complex, especially if there are children that are secret children or secret families. And so, I’ve been involved in these types of cases. But let me talk about one that’s in the public venue. So a husband dies and he has a wife and two children. But it then comes to light that he has another family that he has been living with. He’s got another spouse or woman who claims to be a spouse, has another two children, they have a home. So, he has one family in the lower mainland and another family in the island.
And so, notwithstanding the fact that really his estate should be administered under the provisions of WESA, where there is no will. The first question is; who are the beneficiaries of the estate? Who is his spouse? And so, the court ultimately found that WESA recognizes multiple spouses. He was legally married to one woman, but he was carrying on a marriage-like relationship for purposes of WESA, with another woman. And one of them I think knew about the other, but the other didn’t know about one.
And so it’s actually a sad story. One, it was quite shocking to some people that the legislation recognized two wives. Now that’s for the purposes of division of family assets. There was no question about the children, the children would be recognized no matter what. But it’s a very sad situation because you now have two women who presumably are grieving, they’re angry, there is uncertainty about their financial situation, they’ve got young children who are likely confused by all of this too. So that part of the litigation was very public.
We don’t know how all of this was sorted out. We don’t know the value of his estate. We know he was involved with some criminal activity so who knows if there were assets. There were the two homes that he was keeping. But it just goes to show that you never know. There’s always room for interpretation in the law. And so, if you have an unusual or a unique circumstance, you may not feel like you obviously fit. But this is an area of law that is ever expanding to meet the needs of society.
Kevin Parton:
Yes. Which seems to be changing at a rapid pace. I want to sort of see if we can get one story on WESA and how that’s unfolded. Are there any higher profile cases in the last couple years as it relates to WESA, where we could hear what kind of outcome an estate litigation dispute ended up being resolved as?
Krista Simon:
So, I’ve given you a couple of examples earlier: The three daughters, one of whom was estranged. The husband with two spouses. There was another case of estrangement that I think was an interesting case, where it was twin daughters.
And they were in their 30s and they brought a wills variation claim. Their father died and they didn’t really have a relationship with him. And he left all of his estate to some friends.
So, the case outlined their family history and it was very, very sad. The twins were the product of a short relationship between the deceased and the twins mother. Shortly after the twins were born, they may have been one or two years old, the mum passed away.
The dad then engages in what sounds like a very aggressive custody battle with the maternal grandmother, who ultimately won custody of the twins and raised them in Nova Scotia. Following that, the court found that the father became quite bitter about the whole thing and basically did not want to have a relationship with these girls over the course of their life, notwithstanding the fact they reached out to multiple times.
And so, at the end of the day, the court said, look this is estrangement that is the fault of the father and shame on him. He focused his anger and blamed the outcome on the two girls rather than just dealing with it as an adult. And in terms of what the court did, they recognized, still, the independence of the testator. So, the will maker gets to have some say, even if he’s acting unfair. So the court said “Look, these friends were important people to the deceased. We’re not going to cut them out.” But I think ultimately the twins shared in 80 or 85% of the estate and the friends then shared in the remainder.
And I think the cases on estrangement are top of mind because I have several of these cases right now where our clients are adult children who never had the opportunity to have relationships with their stepsiblings because they didn’t know about them. And they were kept secret, and parents who were in and out of their life and didn’t help in raising them and things like that. And ultimately are cutting them out of their estate. Again, for no good reason seeming to penalize them.
Kevin Parton:
Okay. Well, I realize we’ve covered a ton as I get to the end of end of this. There is also quite a bit that we didn’t even tap into. What I’d like to do as we tie things up, if you could give a couple key pointers of what would be the most valuable thing for our listeners to take away from this episode based on your experience?
Krista Simon:
Estate disputes are family disputes. And they can be emotional due to the complexities involved. And on top of that emotion, are financial and legal complexities. We didn’t talk directly about blended families, but that certainly adds a layer of complexity to any estate dispute. So proper planning is really important. If I was to give some advice on ways to avoid disputes, I would say it’s essential to be proactive in the planning stage.
Again, going back to basics, clearly communicate your wishes and your intentions. I would suggest that people don’t see estate planning as something so private to the extent they’re not sharing any of the details with the people it’s important to share them with. I think having open conversations can minimize misunderstandings. Ensure your estate plan is comprehensive, up to date, and it’s something that you are reviewing and taking stock of your changing life circumstances.
I would suggest appointing a trusted executor who you know will carry out their duties honorably and encourage them to have legal advice and accounting advice and other financial advice along the way. I think on the other end of things, I would encourage people to work with a lawyer and other advisors on the litigation stage and the probate end of things and not try to do it yourself. The court forms are available online, but these court cases are very complicated.
And as soon as you have questions or concerns or there’s rumblings among beneficiaries, I would advise anyone to reach out and just have a consultation with a lawyer. It’s complementary to our firm, but also, it’s confidential. So, none of the other beneficiaries or the executor needs to know, nobody needs to know that you’ve sought out advice and have asked questions of a legal adviser. But at least you can make fully informed decisions. You can be proactive rather than reactive. And you can make your decisions in a timely manner and not when you feel like you’re under the gun.
Kevin Parton:
Yes. I think it’s hugely important. Knowing that they can reach out and knowing that wherever it leads, at least they’re informed. And regardless of the approach, it sounds like communication is so paramount. Communicating within the family, communicating to the beneficiaries or executor. And sometimes it’s the other way, sometimes you have to initiate that conversation with your parents or grandparents and knowing that it’s better to have the conversation in advance, however difficult it may seem, than to do it afterwards.
Thank you very much for your time, Krista. This is obviously a very deep subject, but I really appreciate your input and all the time you’ve put into sharing some of this information.
Krista Simon:
You’re welcome, my pleasure. I’m always happy to talk about estate litigation and all of the fun facts involved. And again, this is a people focused practice. So, everyone at Hammerco, no matter what our practice area may be, we’re really focused on our clients. And you may have heard our mantra “People first, lawyers second”. We really wear that as a badge of honor.
Kevin Parton:
Well, I’m knowing you better and I’ve known Morgyn for a decade, and I know many other lawyers at the firm, and I love the way you work and how you approach the business and it’s been exciting to have you on here.
Thank you again,
Take care.
Krista Simon:
Thank you.
