Basics of Wills and Estate Planning 2021

Course Chairs
Eric B. Clavier — Fasken Martineau DuMoulin LLP, Vancouver
Emily Clough — Clark Wilson LLP, Vancouver

About the Course Chairs
Eric Clavier is a trust and estate litigation lawyer at Fasken in Vancouver. After completing his studies at the University of Pretoria, Eric was called to the South African bar in 2000. He practiced as a barrister in the Republic of South Africa for 12 years (South Africa has a split legal profession, like in the UK), gaining extensive trial and motion experience, and appeared at all levels of court, including various appearances in the Supreme Court of Appeal of South Africa.

After moving to Canada in August 2012, Eric completed the Federation of Law Societies of Canada's NCA exams in 2013. Following truncated articles at Fasken in 2014, Eric was called to the BC bar in 2014, where he now appears regularly before the Supreme Court of BC and BC Court of Appeal.

Eric's practice involves assisting clients with contentious matters related to wills, trusts, undue influence and incapacity claims, committeeship applications, unjust enrichment claims, breach of fiduciary duties cases, abuse of powers of attorney claims, breach of trust claims, partitions of property, and passing of accounts.

Eric is a member of the CBA, the CBABC Wills & Trusts Section, the CBABC Elder Law Section, and The Advocates Society. Eric is President of the board of directors of Seniors First BC, vice-chair of the CBA Elder Law Section National Executive, co-chair of the CBABC Elder Law Section Executive, and a Section Representative for CBABC's Provincial Council. Eric has given presentations on various topics, including trusts in the corporate context, powers of attorney, joint tenancy, family law in estate planning, corporate shares on disability, wills variation considerations, wills variation considerations for blended families, effective planning tips to avoid later litigation, practicing wills, estates and trust law during COVID-19, estate planning and planning opportunities in the time of COVID-19, and ways to safeguard your family, fortune and future.

Starting fall 2021, Eric will be teaching Trusts at Peter A. Allard School of Law, UBC. 

Emily Clough is a partner at Clark Wilson LLP, where she is the key contact for the Elder Law Group. She has acted as counsel in cases that have set new precedents in BC, including on wills variation and the incapacity to marry. Her cases have received national coverage by the Globe & Mail and the CBC. Emily is the elected Chair of the BC Law Institute and the Canadian Centre for Elder Law. Emily is also the President of Health Justice, a human rights focused non-profit organization working to improve BC laws and policies of coercive health care, particularly under the Mental Health Act.

Faculty
The Honourable Sandra K. Ballance — Mediator, Vancouver
Carolyn R. Anderson — Manager, Professional Conduct, Law Society of BC, Vancouver
Mike Beishuizen — Westcoast Wills and Estates Law Corporation, North Vancouver
Annie H. Chen — Fasken Martineau DuMoulin LLP, Vancouver
Blair P. Dwyer — Dwyer Tax Law, Victoria
Hardeep Gill — Fasken Martineau DuMoulin LLP, Vancouver
Nikki Hildebrand — Norton Rose Fulbright Canada LLP, Vancouver
Fiona Hunter — Horne Coupar LLP, Victoria 
Amy A. Mortimore — Clark Wilson LLP, Vancouver
Isabel L. Romeral — Farris LLP, Vancouver
Sonali Sharma — Athena Law, Vancouver
Megan Swail — Lawyers Indemnity Fund, Law Society of BC, Vancouver
Geoffrey W. White — Geoffrey W. White Law Corporation, Counsel, Clark Wilson LLP, Kelowna and Vancouver
Amanda N. Winters — Farris LLP, Vancouver

Click here for full faculty bios

Wednesday, November 24

Welcome and Land Acknowledgement (9:00 – 9:10)

Eric B. Clavier — Fasken Martineau DuMoulin LLP, Vancouver
Emily Clough — Clark Wilson LLP, Vancouver

Overview of Estate Planning (9:10 – 9:40)

• what is an estate plan?
• what are the goals of estate planning?
• what are the components of a typical estate plan?
• specific issues to be considered
  • foreign property
  • multiple wills—probate?
  • taxation
  • blended families
  • First Nations wills
• remote witnessing

Emily Clough — Clark Wilson LLP, Vancouver

BREAK (9:40 – 9:55)

The First Appointment (9:55 – 10:55)

• the role of the lawyer
• preliminary information gathering
• the client interview
• difficult and/or challenging clients
• assessing capacity and undue influence
• post interview steps

Isabel L. Romeral — Farris LLP, Vancouver

BREAK (10:55 – 11:10)

Essential Tax Considerations for Will and Estate Planners (11:10 – 12:10)

• fundamental tax concepts
  • taxation of capital gains
• lifetime transfers and gifts
• tax consequences on death
• registered plans (RRSPs, RRIFs, TFSAs)
• taxation of trusts
• planning strategies to minimize tax

Blair P. Dwyer — Dwyer Tax Law, Victoria

LUNCH (12:10 – 12:50)

The Will (12:50 – 1:50)

• property disposable by a will
• preparing your standard will
• drafting considerations
• common drafting errors
• technical requirements for formal execution
• other planning tips and traps

Sonali Sharma — Athena Law, Vancouver

BREAK (1:50 – 2:05)

Lessons from the Future (2:05 – 2:45)

• preparing your standard probate application
• probate fees
• time factors
• implications for the estate plan

Mike Beishuizen — Westcoast Wills and Estates Law Corporation, North Vancouver

BREAK (2:45 – 3:00)

Essential Corporate and Business Succession Issues for Will and Estate Planners (3:00 – 4:00)

• overview 
• estate freeze basics
  • why does an estate freeze?
  • s. 85 and other tax deferral provisions
  • valuations
• practice tips for estate freezes 
  
  • best practices
  • working with accountants
  • conflict issues
• going beyond the corporate legal and tax issues
  
  • how to raise and discuss soft issues with clients
  • dealing with family dynamics
  • managing and coordinating personal and corporate planning for clients
  • practical considerations for client's business and family

Annie H. Chen — Fasken Martineau DuMoulin LLP, Vancouver
Hardeep Gill — Fasken Martineau DuMoulin LLP, Vancouver\

Thursday, November 25

Welcome Back (9:00 – 9:05)

Eric B. Clavier — Fasken Martineau DuMoulin LLP, Vancouver
Emily Clough — Clark Wilson LLP, Vancouver

Professional Conduct (9:05 – 10:05)

• common complaints about lawyers in wills and estate planning
• ways to avoid complaints
• complaint process and responding to the Law Society

Avoiding Claims: Common Pitfalls and Tips to Avoid Them

• management of clients and others
• performance of work
• retention of lawyer's file
• ethical and practice issues
• Lawyers Indemnity Fund and the policy
• common risks of error

Carolyn R. Anderson — Manager, Professional Conduct, Law Society of BC, Vancouver
Amy A. Mortimore — Clark Wilson LLP, Vancouver
Megan Swail — Lawyers Indemnity Fund, Law Society of BC, Vancouverer

BREAK (10:05 – 10:20)

The Use of Joint Tenancies and Beneficiary Designations in Estate Planning (10:20 – 11:20)

A. Joint Tenancies

• planning opportunities
• possible problem and pitfalls
• "true" joint tenancies vs "false" joint tenancies
• review of recent cases

Emily Clough — Clark Wilson LLP, Vancouver

B. Beneficiary Designations

• insurance (life insurance, trusts)
• RRSPs/RRIFs
• TFSAs
• RESPs

Nikki Hildebrand — Norton Rose Fulbright Canada LLP, Vancouver

BREAK (11:20 – 11:35)

Lifetime Planning—Not Dead Yet! (11:35 – 12:15)

• planning for incapacity with respect to financial affairs
• planning for incapacity with respect to health care
• dealing with incapacity where there is no plan
• POA, representation agreement, advance directive, living will

Geoffrey W. White — Geoffrey W. White Law Corporation, Counsel, Clark Wilson LLP, Kelowna and Vancouver

LUNCH (12:15 – 12:55)

The Use of Trusts in Estate Planning (12:55 – 1:50)

• how to choose the right trust: inter vivos or testamentary
• constituting a trust
• components of a well drafted trust
• commonly used inter vivos trusts
  • spouse trusts
  • alter ego and joint partner trusts
  • bare trusts
• commonly used testamentary trusts
  
  • spouse trusts
  • trusts for minors and young adults
  • trusts for disabled beneficiaries
• the impact of the Land Owner Transparency Act on trust planning

Fiona Hunter — Horne Coupar LLP, Victoria 

BREAK (1:50 – 2:05)

Wills Variation Considerations (2:05 – 3:05)

A. Recent Wills Variation Cases

• what constitutes "adequate provision"
• reasons for disinheritance
• competing claims by adult children
• competing claims between spouse and children
• blended family claims
• role of executor
• costs

B. Wills Variation and the Family Law Act

• spousal qualification
• the assessment of the legal obligation under the Family Law Act
• family property and excluded property
• competing claims

C. Wills Variation and Other Estate Claims

• wills variation and proof of will proceeding
• wills variation and resulting trust claims
• procedure for bringing all claims at the same time

D. Impact of Wills Variation on Estate Planning

• effective use of a will in contentious circumstances
• memorandum of reasons
• ethical issues relating to planning to avoid variation claims

Eric B. Clavier — Fasken Martineau DuMoulin LLP, Vancouver
Amanda N. Winters — Farris LLP, Vancouver

BREAK (3:05 – 3:20)

Using Mediation in an Estate Claim (3:20 – 3:55)

• being an effective advocate in mediation
• communication, valuation, and taxation
• skillful negotiation—informed not haphazard or ritualistic
• yes! mediation can settle that nightmare case
• key ethical point

The Honourable Sandra K. Ballance — Mediator, Vancouver

Closing Remarks (3:55 – 4:00)

Eric B. Clavier — Fasken Martineau DuMoulin LLP, Vancouver
Emily Clough — Clark Wilson LLP, Vancouver