In March, estates and trusts practitioners gathered at the monthly OBA Brown Bag Lunch to share insights and experiences relating to the often interesting, unique, and complicated matters that can arise when practicing in this area.
One attendee sought input from their fellow practitioners about an issue relating to conflict and ethics. The question was whether the lawyer, who had previously prepared Wills for spouses on a joint retainer, can act for one spouse alone to amend their Will after the other spouse has become incapable. The situation was a tricky one, and BBLers shared their thoughts and some relevant considerations. Ultimately the consensus seemed to be that there is no obvious answer and that the attendee would need to use their judgment.
BBLers then had a discussion about evolving practices in Will execution, referencing a recent article about the placement of exhibit stamps on Wills. Some attendees shared that they have not changed their past practices and do not intend to do so, while others noted that they have recently been implementing different stamp placement. On a related topic, one attendee shared a recent challenge in filing a probate application where it was rejected on the basis that there was no exhibit stamp on the witness copy of a remotely executed Will, even though the stamp did appear on the testator signed copy.
Next, a few participants raised topics relating to planning for disabled individuals, including who must be the holder of an RDSP account if the disabled beneficiary is contractually competent, and how to deal with the bank in a situation where there is a disabled and incapable individual unable to grant a power of attorney, but where the bank account is that person’s primary asset such that a guardianship application would be inefficient. One BBLer shared that in their experience, clients are able to navigate the situation fairly well once they get in contact with the right person at a financial institution. Another shared that they had recently had a positive experience appointing a parent as a replacement statutory guardian under the Substitute Decisions Act, 1992, and that the process had been much more cost-effective than a guardianship application.
Finally, BBLers discussed logistical issues that occasionally arise in estate administration, including the difficulty of obtaining a Medallion Signature Guarantee when dealing with share transfers involving transfer agents located in the United States. Because relatively few Canadian bank branches offer this service, lawyers often need to identify specific institutions or locations that can assist, which unfortunately may not necessarily be convenient for their clients.
The next Brown Bag Lunches will be held on May 19, and June 16, 2026. If you are interested in attending, please contact the moderator, Rebecca Kennedy at rkennedy@agbllp.com, for Zoom information.
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