Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J A N U A R Y 2 0 1 9 49 The ruling said that wills cannot assign the distribution of assets to the discretion of trustees. To save money on probate fees, it has been common practice to create two wills, allocating assets that require probate to the first and those that do not to the second. The basket clause allows the trustees to assign the assets to either will, which was the problem for Justice Sean Dunphy, because the executor then does not set out certainty in where the assets go. Apart from O'Sullivan Estate Lawyers LLP also voted as Canada's top boutiques in wills, trusts and estates were Bales Beall LLP, de Vries Litigation LLP, The Estate House, Goddard Gamage LLP, Hull & Hull LLP, Legacy Tax + Trust Lawyers, Schnurr Kirsh Oelbaum Tator LLP, Underwood Gilholme Estate Lawyers and Whaley Estate Litigation Partners. The winning firms that Canadian Lawyer interviewed said it is a particularly busy era for estates lawyers, as the baby boomers age and pass on their wealth to the next generation. "There is a huge transfer of wealth as the population ages. And I guess there tends to be, I'll say unfortunately, a fair amount of litigation arising from that transfer of wealth," says Sender Tator, a partner at Schnurr Kirsh Oelbaum Tator LLP. On top of a busy decade, for Calgary's Underwood Gil- holme Estate Lawyers, the busy season came early this year, blown into action with an unfortunately not-so-uncharacter- istic September blizzard. Canadians tend to spend the winter indoors, boxing them- selves in with germs and viruses and facilitating a more intimate access to flus and other contagion. What this means, says Terry Gilholme, is more people die and estates lawyers have more work to do. Their boutique has been operating since 2004, when the big firms stopped handling wills, trusts and estate planning to focus on more profitable areas. At that time, criminal, family, real estate and other personal services were moved out of the focus for these firms, says Jonathan Ng, a partner at Underwood Gilholme. "In the '90s in Calgary, the big firms downtown realized that wills and estates lawyers don't make as much as the corporate and tax and litigators. They moved us all out. And we formed boutiques," Gilholme says. But now the ripple effects of the economic downturn are eliminating files for lawyers in all practice areas and Gilholme and Ng say they see an increasing number of young lawyers fill- ing their plates with wills, trusts and estate work. "But Calgary is in a very bad financial situation. And a lot of lawyers are going into wills and estates; a lot of the young ones coming up are moving into this area," Gilholme says. When Suzana Popovic-Montag moved into the area, she says, Hull & Hull LLP co-founder Rodney Hull told her, "You don't get to the big house very often" in wills, trusts and estates. But counter to that forewarning, the firm just recently won in the Supreme Court in Sweet v. Moore, a case concerning unjust enrichment. In that case, after the death of Lawrence Moore, the conflict arose over who was entitled to the payout of an insurance policy, his former wife Michelle Moore, who paid the premiums and had an oral agreement, or Risa Sweet, the common-law partner whom Lawrence Moore had subsequently designated as the beneficiary. Hull & Hull acted for Moore. The application judge ruled in Michelle Moore's favour, but a split Court of Appeal overturned the deci- sion, ruling that the lower court had incorrectly found the oral contract between the Moores amounted to an equi- table assignment. The Court of Appeal found there was no unjust enrichment as Sweet's claim to the proceeds was due to her designation as an "irrevocable beneficiary." "The Supreme Court ultimately granted us leave and reversed that decision and said the woman, who was paying the premi- ums pursuant to an oral contract with the deceased, was entitled to them when he passed away, notwithstanding, the fact that they were irrevocably designated to the other woman," says Popovic-Montag. Based on the commentary arising out of the decision, Popo- vic-Montag says many are "fussed" about how it affects "what everyone understood to be a clear protection in terms of an irre- vocable beneficiary," she says. The late Rodney Hull began the firm with his son Ian Hull in 1998. The younger Hull has authored four books on the practice and is a certified legal specialist in estates and trusts law and civil litigation. Popovic-Montag is managing partner. "There is a huge transfer of wealth as the population ages. And I guess there tends to be, I'll say unfortunately, a fair amount of litigation arising from that transfer of wealth."

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