Don’t Let Your Estate Be Contested

A “simple will” won’t necessarily protect your estate, McQuarrie partner Elyssa Lockhart says

An experienced lawyer can ensure your wishes are upheld

In June of this year, the children of William Trottier asked the Ontario Superior Court to find that his widow Huguette, had breached a mutual will agreement entered into by the couple in 2010, by donating $200,000 to a college in William’s honour. Mutual wills are often used in blended family planning to overcome the challenge of supporting a surviving spouse while ensuring ultimate gifting to first-marriage children. The court determined the sum didn’t significantly impact the value of the multimillion-dollar estate, and that Huguette did not violate the intent of the couple’s contractual estate plan, as their mutual will agreement did not give rise to a trust following the death of the first of them. Further, until her death, Huguette is not required to report her expenditures to William. Meanwhile, in July of this year, four B.C. sisters contested the comparatively simple will of their late parents Nahar and Nihal Litt, arguing that they had been discriminated against because the parents left 93 percent of their $9-million estate between their two sons and less than two percent to each of the four girls. The B.C. Supreme Court redistributed the Litt’s estate, granting about $1.35 million to each of the sisters. Elyssa L. Lockhart, partner at McQuarrie Hunter LLP, cites these two cases to illustrate what she considers to be the single biggest mistake people make in estate planning. “I’ve lost count of how many clients come to me asking that I draft a ‘simple will,’ meaning without what they perceive as needlessly complicated legal embellishments,” she says. Lockhart adds, “But the Ontario case demonstrates that a properly drawn estate plan can withstand a serious court challenge, whereas a simple will may not—as was the case for the Litt family. Whether or not the Litts’ daughters deserved a more equal inheritance is not the point; the point is that if you have definite plans for your estate after your death, you can’t afford to prejudge your needs in drafting the legal documents—especially if you have business assets, a blended family or estranged or disabled children.” Lockhart, whose Fraser Valley firm is the largest full-service law firm headquartered outside of Vancouver, adds that trying to over-simplify even the basic intent of leaving offspring equal portions of an estate can be perilous, “because assets can be subject to differing levels of taxation or other impediments to transfer—which an experienced estate planning lawyer is well aware of and capable of addressing.” Additionally, at a firm such as McQuarrie, lawyers often collaborate and leverage each other’s knowledge, such as that of Jacy Wingson, QC and partner at McQuarrie, who has over 19 years’ experience in complex estate and trust litigation disputes. “While the temptation to draw a simple, straight line from A to B is common,” Lockhart points out that “what clients are truly seeking is a simple estate administration after their deaths. People see value in simplicity, but that doesn’t necessarily translate to wills. In fact, in most cases the opposite is true—and there is no end of court cases to back this up.”