Special Feature: Create a Legacy

Leaving a legacy is a profound way to contribute a lasting presence for generations

The urge to leave a legacy is almost universal, and many people spend a great deal of effort ensuring what they have achieved in life will benefit others.

Elyssa Lockhart, Partner at McQuarrie Hunter LLP, suggests that those who have a legacy to share ask themselves this fundamental question: What does the term “legacy” mean to them?

Frequently, Lockhart’s clients have preconceived ideas of what they should do with their estates. However, also frequently, preconceived notions of what is either morally appropriate or legally required fail to support their personal views on legacy.

For instance, often people believe they must distribute assets among all children equally, or, conversely, that there is no viable way to transfer a successful family business without benefitting only the child involved in its day-to-day management. By first defining “legacy” in the context of an individual client, Lockhart is able to assist her clients in achieving estate plans that are both fair to all family members, as well as emotionally satisfying for her clients.  As a parent herself, Lockhart feels this offers the peace of mind clients are seeking when they reach out to wealth-preservation professionals.

“By asking ourselves what legacy means to us, we may discover it is not the family business itself, but rather the entrepreneurial spirit we have instilled in our children, who may inherit the value of our estates and then invest it in a business opportunity of their own.  For example, my father was a lawyer and I was able to take over his practice when he suddenly fell ill.  Had he been a chef, I would have been woefully underqualified.”

 By carefully defining “legacy,” whether it be the continuation of a business, maintaining ownership of land or simply distributing assets among heirs, an effective legal and tax planning strategy can be devised to protect it.  The intergenerational transfer of wealth offers opportunities to open doors for the next generation.

To ensure a cost-effective transfer, maintenance of retirement income and a smooth distribution of estate assets on death, Lockhart advises seeking professional advice early in your planning process.

Within the legal framework

Just as fundamentally important as considering what kind of legacy to leave behind is the way you formally declare your intentions.

Traditionally, one of the worst outcomes of inadequate estate planning has been the invalidation of the will because the will-maker did not strictly comply with the requirements needed to make a valid will. This has caused anguish for family members and other intended beneficiaries, who had no recourse if the will-maker’s final wishes were defeated on technicalities and the law determined how the estate would be divided.

Fortunately, Section 58 of the Wills, Estates and Succession Act, enacted in 2014, is proving to be a saving grace for some will-makers who fail to dot all the i’s and cross all the t’s. “It gives the courts the opportunity, based on their assessment of each case, to fix a non-compliant record (which includes electronic documents) by declaring it to be a valid will,” says Emma Ferguson, Associate Counsel with Alexander Holburn Beaudin + Lang LLP.

When a case goes to court under Section 58, the core question to be determined is whether the document represents the deceased person’s final testamentary intentions. “Many factors help in reaching this decision, including whether the document is written by the deceased, signed by the deceased, revokes prior wills, and is signed by witnesses,” says Ferguson.

Whereas in the past the application of will-making requirements in B.C. was so strict that some wills were invalidated because the witnesses signed when the will-maker had left the room (and therefore deemed not to be “in the presence of” the will-maker), according to Ferguson, the courts can now apply Section 58 to validate a will to obtain a just result.

She says: “In the Yaremkewich Estate case, a filled out pre-printed will template signed by two witnesses was found in an unsealed envelope, along with two lists of specific bequests from the will-maker and care instructions for her dog. When the case was taken to court, although the witnesses couldn’t recall if the will-maker had signed in front of them, the court declared the will to be valid because the will-maker had, among other things, attempted to comply with the formalities and had put a great deal of thought into the process.”

However, Ferguson warns that Section 58 has its limits. “It can be an effective final resort, but bear in mind that taking a case to court costs thousands of dollars, typically at the expense of the estate,” she says. “Section 58 is making litigators more busy, not less, so just avoid it by going to a lawyer and ensuring that your will is legally sound and that you aren’t creating confusion by leaving other will-like documents in your papers or on your computer.”

Thinking long term

A large part of legacies pertains to donating to charities or causes, but Kevin McCort, CEO of Vancouver Foundation, offers advice that at first may seem provocative. “Sometimes it’s best to think in general terms rather than specific,” he says.

Vancouver Foundation is Canada’s largest community foundation, and last year alone it relied on the generosity of British Columbians to make 4,800 grants and distributions; support 1,700 organizations; and disburse $54 million to the arts, environment, medical research and education, among other sectors.

Many donors think in the long term, but McCort points out that causes evolve radically in a relatively short space of time. “For example, while health is a timeless cause, it’s no longer pertinent to give money to polio research,” he says.

Youth welfare is another perpetual cause for which specific needs have changed drastically. “Our annual reports of the 1970s show kids participating in chess clubs, but now the big focus is youth aging out of foster care,” says McCort. “The environment is yet another example: in the early days, the initiatives pertained to park preservation—and today just look at the myriad of needs.”

Instead of trying to determine what the future needs of any cause will be, donors to Vancouver Foundation have a much simpler option: to rely on its team of community experts to ensure that their donations will have a lasting impact. “We have about 100 volunteers, all of whom have a firm grasp of what’s going on in their respective fields,” says McCort. “And to make sure we stay relevant with the times, they serve for a three-year term, renewable only once.”

He says: “Basic causes rarely change, but the particulars do. So think generally about where you’d like your legacy to go, and then let’s have a conversation to see how we can help.”

Instead of trying to determine what the future needs of any cause will be, donors to the Vancouver Foundation have a much simpler option: to rely on its team of community experts to ensure that their donations will have a lasting impact. “We have about 100 volunteers, all of whom have a firm grasp of what’s going on in their respective fields,” says McCourt. “And to make sure we stay relevant with the times, they serve for a three-year term, renewable only once.”

He says: “Basic causes rarely change, but the particulars do. So drill down and determine where you’d like your legacy to go, and then let’s have a conversation to see how we can help.”

Helping kids

There is no more noble a cause than helping ensure the health and safety of children, and Cally Wesson, CEO of Variety—the Children’s Charity of BC, points out that “the cost of helping kids is growing, whether it’s the $5,000 price tag of a basic wheelchair or the money families must spend on tutoring dyslexic children.”

Plus, for children with severe ailments, “often one parent must stay home as a caregiver, thus reducing the family income by half,” says Wesson.

Variety has since 2010 distributed over $30 million in funding to families and organizations throughout the province, aided by a Legacy Committee of volunteers who ensure that donor gifts have the most impact.

One of the more recent stories about how Variety’s donors have helped kids involves a youngster named Kalenna, who had advanced speech apraxia. 

Her mother Natasha recently told Wesson that at age six it seemed inevitable Kaleena would have to learn sign language, but money from Variety went toward hiring a therapist. Now, two years later, “she contributes in class discussions, goes along on play dates with friends, and confidently joins summer camps and participates fully.”

More than a place to stay

Ronald McDonald House BC and Yukon helps the families of children diagnosed with serious illness or injury when they must relocate to Vancouver for their child’s treatment. “Thanks to community support, RMH BC has 73 families staying tonight and approximately 2,000 families each year who are forever grateful that we are there for them in their time of greatest need” says Sarah Catliff, Development Director, Individual Giving.

More than a place to stay, RMH BC enhances families’ experiences by providing a variety of programs such as Family Meals, whereby volunteers cook meals for families, allowing them to enjoy a home-cooked meal while sharing quality time together.

Richard Pass, CEO, Ronald McDonald House BC & Yukon, notes: “When you leave a legacy gift to RMH BC, you are helping future generations to cope with the stress of their child’s serious illness and ultimately creating a legacy that reflects your values of strong families and strong communities.”

Listening to needs

A grateful patient family member recently said of their stay at BC Children’s Hospital: “It’s the best place to be on the worst day of your life,” and this hits home with Hilary Beard, Associate Director, Gift and Estate Planning for the BC Children’s Hospital Foundation.

She says: “As the only hospital in the province devoted exclusively to children, over 86,000 kids and teens come to our campus each year, which is why it’s vital we continue to invest in research, equip the hospital with the latest tools and technology, and attract the brightest medical talent. Because of the support of our legacy donors, we are able to continue to do this into the future.”

Beard adds: “Undesignated legacy gifts are fabulous to receive because they allow us to direct funds where needed most. A legacy donor might not know the possibility of what their gift could support but in the future, it could help conquer childhood diseases or provide specialized equipment tailored to the unique needs of our kids.”

Of course, legacy donors with an interest in supporting specific areas are equally valued. “We are grateful for our donors and listen to their needs very carefully,” says Beard. “There’s no finish line when it comes to pediatric care, and it’s fulfilling to know our donors are always there when our kids need them most.”

Making a difference

Finally, while so many health-related charities are age-specific, Arthritis Research Canada has a straightforward message: arthritis can affect anyone at any age.

More than 5.6 million Canadians, adults and children, have arthritis. It is the most costly chronic disease in the country ($33 billion annually), yet it receives only two per cent of available government research dollars.

Fortunately, Arthritis Research Canada, headquartered in British Columbia, is a world leader in arthritis research and the largest arthritis research centre in North America. Its scientific team is addressing the more than 100 forms of arthritis through the lens of many disciplines, including rheumatology, physiotherapy, occupational therapy, pharmacy, biostatistics, and knowledge translation.

Arthritis Research Canada is currently conducting over 75 studies aimed at arthritis prevention, early diagnosis and treatment, and quality-of-life issues. Advances in research are made possible thanks to the generous support of donors.

“Legacy gifts in particular are a wonderful way for donors to have an impact on the future and bring positive change for people living with arthritis,” says Dr. John Esdaile, Arthritis Research Canada’s Scientific Director.

He adds: “By leaving a gift in their will, donors are able to fulfill their desire to continue to make a difference for generations to come.”