Michael Ford (post until Oct. 31/19)
Estates & Wills & Trusts

Estate talk awkward but necessary: Aulis

Broaching the “estate talk" with a reluctant older family member is awkward but necessary for younger relatives, Toronto trusts and estates lawyer Patrick J. Aulis tells AdvocateDaily.com.

Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation, says he understands the temptation of an adult child to avoid a difficult conversation, just as much as he empathizes with Mom and Dad’s desire to put off the preparation of a will or the updating of an old one.

“There are all kinds of reasons people don’t want to talk about it. Some find the subject matter too morbid or upsetting, and sometimes there are cultural obstacles in the way where discussing your own mortality is regarded as bad luck,” he explains. “Whatever anyone thinks about the validity of those concerns, the reality is they are certainly important to the person who holds them.”

Still, Aulis says, everyone benefits when the discussion occurs, and there are ways for family members to set the tone for a conversation with a testator that can encourage them to engage in the process.    

“There are human elements to consider: pick a time and place where people will feel comfortable discussing the topic,” he says. “Some people will respond well to a relaxed setting around the kitchen table, while others will prefer it to be approached in a more serious way, such as a family meeting with a little more formality.”

Once the dialogue begins, Aulis advises younger family members to tailor their approach depending on the preferences of their parents.   

“Try to come at the issue in a way in which the elders can grapple with it. If the problem is they don’t want to focus on the fact they’re going to die, then you can avoid that by talking about the benefits of engaging in the process now,” he says.

“Some will respond more strongly when you point out the costs of neglecting to take care of an estate, both to the testator and the people they leave behind,” Aulis adds.  

In his practice, he has plenty of first-hand experience helping people through the difficulties caused when a loved one dies intestate.

“If you have no estate plan at all, or a will that’s been struck down because it’s invalid, then you don’t know what’s going to happen with your assets,” Aulis says, noting that the Succession Law Reform Act has a strict set formula for the distribution of assets for intestacies.

“There is a possibility that what happens when there isn't a will is something completely unexpected to the deceased, and they wouldn't have wanted it that way if they were around to see it,” he adds.

Things get even more complicated in blended-family arrangements or when the deceased was in a common-law relationship.

“The laws that govern estates don’t provide any benefits to a common-law spouse the way they do to a married one,” Aulis says. “There are some ways around it, but unless you’re going to make some fairly sophisticated legal arguments about being a dependant, there’s no way to claim benefits from the estate as a common-law spouse.”

But suing the estate doesn’t always go down well with other beneficiaries, Aulis notes, especially if relations are already strained.

“You can imagine a situation where a person’s common-law spouse of 20 years dies, and all of a sudden they lose their rights to the home they shared with their partner, at a time when they are least emotionally prepared for a transition,” he says. “That kind of heartache can be saved simply and inexpensively with a well-drafted will that makes provisions for a common-law spouse. They could be left the house, given a life interest in it, or provided with other assets to take care of themselves.

“Even if there is no lawsuit, there is the potential for wasted time and money figuring out what a person meant to happen if there is no clear estate plan for guidance,” Aulis adds.

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