Canadian Lawyer

LEGAL REPORT/WILLS, TRUSTS, AND ESTATES Cummings, the Ontario Court of Appeal concluded that moral obligations could be considered under the Succession Law Reform Act, although that case involved dependant heirs. To date, the courts in Ontario have not explicitly recognized a moral obligation for claims by indepen- dent children, but lawyers who practise in this area say as a result of the decision in Cummings the law is not that differ- www.ERAssure.com ent than in B.C. "Mediation in this area has decimated case law, Hull & Hull LLP in Toronto. "But from a practical standpoint, the independent child, moral obligation claim is pursued much more than it ever was and these cases are settled. The fact that B.C. has a statute is overplayed. It is a very pow- erful tool in mediation and settlement discussions." " says Ian Hull, at io, whether there is a moral obligation to provide for an independent child was de- scribed as "almost, possibly, probably, While not tested at trial yet in Ontar- estates lawyer Susan Woodley in a 2009 paper for the Ontario Bar Association. "It is still fairly controversial, " by "You can argue there is a moral obliga- tion, but it does not equal a legal obliga- tion. And you first have to look at com- peting claims," says Woodley, a lawyer in Bowmanville, Ont. With the "right facts," a court in On- " she states. tario may recognize a moral obligation for an independent child, but that right can be extinguished by their actions. "If you haven't seen your parents in 10 years, they have a right to disinherit you, Woodley. Even in B.C., possible interference "As a best practice approach on every case of advising a Testator or an Estate, lawyers should relay the availability of executor insurance to their clients." Mark Weintraub Clark Wilson LLP " says with testamentary autonomy can be con- troversial, sats Trevor Todd, a Vancou- ver estates lawyer whose firm web site is disinherited.com. "Bring this issue up at a dinner party. You will have a food fight. Your guests will be split 50-50," says Todd, who believes the legislation in B.C. is good public policy. "It is fair and equitable. in Tataryn, the application of the test in B.C. has been very fact specific. "In a Wills Variation Act case, pretty much ev- erything is a factor, Since the Supreme Court's decision " The new best practice in estate law Protect yourself by protecting your clients with ERAssure Executor Insurance. The legal climate is changing in Canada, putting your executor clients at increased risk of being sued. As an estate lawyer, you consequently face greater risk as well in two main ways: 1. If the executor does not have adequate resources or insurance to cover their liability, you and your professional E&O coverage could be the next target for a claim from the beneficiaries. 2. If you have failed to communicate to your executor clients about their personal liability and the availability of executor insurance, they could sue you if they have an uninsured claim for damages. Put ERAssure between your client and your professional E&O coverage — on every estate. Call 1-855-636-3777 to book a 10-minute orientation about implementing this best practice today. associate counsel at Stewart Aulinger & Co. in Vancouver who represented Bruce Holvenstot. "There is a huge amount of discretion for the trial judge. " says Robert Kasting, ERAssure is the exclusive Preferred Supplier of executor insurance for Canadian Bar Association members. ERAssure® trademark of Estate Risk Protection Plan Inc. is a registered late mother in Holvenstot, Halfyard con- cluded that many of her claims against her son were not true. He believed other claims though, including the allegation the son planted the marijuana, moved to have his mother declared incompetent, and tried to acquire ownership of land, which required her to go to court to can- cel an agreement. The B.C. judge also relied on a 1995 videotaped interview be- tween Patricia Holvenstot and a judge in New Jersey, who found that she was com- petent and did not want to have contact with her son. A testator who wants to disinherit an heir must have "valid and rational" Even in siding with the wishes of the " 48 OCTO BER 2012 www.CANADIAN Lawyermag.com ntitled-2 1 12-09-13 10:05 AM

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