Avoiding estate planning is a recipe for problems: Hiebert-Simkin
By Kate Wallace, AdvocateDaily.com Contributor
Every love story ends unhappily, says Winnipeg wills and estate lawyer Cynthia Hiebert-Simkin, and much of her work is helping to ensure that in those cases where the story ends in death, the pain of grief is not compounded by family feuds.
There is the often-complicated nature of family dynamics and the difficulty of facing the true nature of those relationships, says Hiebert-Simkin, a partner with Tradition Law LLP, a boutique Winnipeg estates and trusts firm. And there is, of course, the challenge of planning for the unknown and eventualities that may never come.
Along with estate administration, Hiebert-Simkin’s practice focuses on estate planning, including reviewing client’s assets and determining how they want them to flow when they die, as well as preparing powers of attorney and health-care directives if they become sick and unable to make decisions.
Called to the bar in 1993, Hiebert-Simkin practised family law for eight years before shifting to wills and estates in 2001.
“I find this area extremely satisfying. Having that experience as a family lawyer is a huge advantage for me in estate planning when it comes to second families,” she tells AdvocateDaily.com. “Second-family planning is really interesting, but it can be challenging for some people.”
As heavy as the work may seem, Hiebert-Simkin says she loves the optimism of estate planning.
"Clients will often tell me, ‘We love one another, we are going to be together until the first of us passes away, and then I want to be sure that I’m looking after my spouse as well as my children from my previous relationship the best way I can,’” she says.
Hiebert-Simkin aims to prepare a document for clients to make things easier for their families. “How can we make sure that, on that day, when your spouse and children are grieving that we don’t compound the problems and they end up fighting over the estate?”
She helps families face those difficult discussions around planning and expectations, as well as dealing with the pragmatic issues of legal obligations and rights in the case of death or incapacitation.
“These are intensely practical issues that every individual and couple has to address,” she says. “But it’s compounded in second families by the presence of these people from the previous relationship.”
Most people have limited exposure to the law — either through buying a house or getting divorced, Hiebert-Simkin says.
“However, everybody is going to die,” she says. “And there’s no law that says you must have a will or be prepared for a possible day that you are unable to manage your own affairs.”
But just because it’s not required, avoiding estate planning is a recipe for problems for those left behind.
Even for those clients who do create estate plans, powers of attorney and health-care directives, those documents are subject to challenges.
“People often ask, ‘How do I prepare a document that’s guaranteed, that can’t be fought over and litigated?’ And I’ll say, ‘You can’t.’
“Any document a lawyer prepares — it doesn’t matter how good it is — will be subject to human involvement. People can choose not to agree with what has happened in the estate plan and can decide they want to fight it,” Hiebert-Simkin says.
Her role is to help clients prepare as best they can, without knowing what the ultimate outcome will be.
In her practice, Hiebert-Simkin is increasingly seeing non-family members being named as executors or attorneys, a trend driven by demographic shifts towards smaller or blended families, and the increase in single people.
“People often agree to take on these roles without a true understanding of the work that’s involved,” she says.
She suggests anyone named to such a position should seek legal advice to understand the scope and nature of the responsibility.
Hiebert-Simkin has a passion for sharing her knowledge and has lectured frequently on wills and estates issues, both to the public at large and professionally. She was such a regular speaker for the Law Society of Manitoba, they gave her their first-ever, “Can’t Say No” Award, she says with a laugh.
She also lectures to the public about their legal rights around wills and estate planning. In her speaking and her practice, Hiebert-Simkin enjoys the intellectual stimulation, as well as the chance to help people.
“I like it when a client leaves my office less worried than when they came in. They have a better idea of what they need to do, that it’s going to work out. We don’t know exactly how it’s going to go, but there is a plan.”