Jean Blacklock (00:00) Hello everyone and welcome to today's episode of Beyond the Bank. A critical aspect of wealth management is a transition of wealth from one generation to the next. And today's guest has built her career in the fascinating and dynamic field of estate mediation and litigation. Felice Kirsch is a partner in the firm of Schneer Kirsch Obam Tater, a leading Canadian law firm focused on all aspects of estate disputes. A graduate of Osgoode Hall Law School, Felice is a sought after speaker and writer in the legal profession.

and has been recognized by her peers as one of the best lawyers in Canada every year since 2008 in the specialty area of estates and trusts. Welcome, Felice. Thank you so much for joining me today.

Felice Kirsh (00:41) Thank you for having me.

Jean Blacklock (00:43) So let's jump right in. So Felice, you graduated from Osgood Hall where I suspect you took classes in litigation and in Wilson Trusts, but how from there did you find your way to focusing your career on the niche of estate litigation?

Felice Kirsh (00:58) So it was really actually a fluke that I ended up in a state litigation. I article that a large firm and did not get asked back and was looking for a job way back in the mid 1980s and found a job at a boutique firm that did a little bit of everything. And I decided when I was doing a little bit of everything, all kinds of litigation that I probably would never be good at anything because it was so wide. So I just kind of wanted to.

get into some specific area of litigation and I didn't have my sights set on the state litigation. It's a very niche area and I didn't know anything about it and most people don't. But I got my next job where I was doing state litigation and franchise law, which is a very odd combination with the idea that I'd specialize in the state litigation. And I've been doing that since about 1987.

Jean Blacklock (01:48) Wow. So got into it by happenstance really, but clearly you've excelled at it and loved it. Now when you're speaking to someone, say in law school or something like that, what would be your elevator pitch for a state litigation as an area for a young lawyer to focus on?

Felice Kirsh (02:09) You know, I think first you have to have the litigation skills and then you have to decide whether you like personal litigation, which would be like family litigation and estate litigation and some other kinds, or whether you want the more corporate litigation, which is acting on behalf of, know, companies in sort of large disputes. I prefer it more, I would say, hands-on, interesting litigation.

maybe helping people as opposed to helping companies. And so if you want something that's, in my view, very challenging but also very rewarding, that would be estate litigation and certainly other areas of litigation as well.

Jean Blacklock (02:52) That's really so very interesting. So as we've discussed, our listeners today are largely wealth advisors. So perhaps we could set the stage by describing what an estate conflict process might look like. What are some paths that people take to find themselves in your office and where might it go from there?

Felice Kirsh (03:12) Sure. So there's all kinds of disputes surrounding estates and frankly also surrounding power of attorney issues that end up in my office. And how they get here is sometimes I'll say too early and sometimes too late. But something goes wrong in an estate or somebody doesn't trust somebody, often the beneficiaries don't trust the estate trustee or

Jean Blacklock (03:28) Mm-hmm.

Felice Kirsh (03:39) you know, you don't trust your brother or you don't trust your sister or it's often the second wife and for and just just every day things like that make people seek out some estate litigation advice because sometimes they think there will be a dispute. The smart ones think let's hear about the dispute. I think one could be coming but hopefully not.

Sometimes they come literally two weeks, sometimes clients come literally two weeks after somebody dies, which I think is often not always, but often too early. And sometimes they come five years later, which is often creates another problem with respect to evidentiary issues, sometimes limitation act issues. all kinds, I'm more than happy to go into some specific types of cases I see, but.

When the client comes in, they don't know the specific case they have. They can't frame it in a legal way. They just say, here is my problem. And then, of course, it's up to the lawyers to say, yeah, that's a case we can deal with. That has a resolution, or that doesn't have a resolution, or your case looks too weak to even try to get some kind of resolution in a formal process. you know.

Jean Blacklock (04:38) Right.

Felice Kirsh (04:52) It's everyday people, it's sophisticated people, it's unsophisticated people. The problems are the same regardless, you you can have the same estate litigation problem on a $200,000 estate as you do on a, you know, $2 million estate or a $20 million estate. The problem is not often, it doesn't equate to the amount of money in dispute, but of course the legal fees have to equate to the amount of money in dispute.

Jean Blacklock (05:20) Yeah.

Felice Kirsh (05:21) I've dealt with all kinds of small, medium and large disputes and resolving them is often just as hard in a small dispute as it is in a large dispute.

Jean Blacklock (05:35) Of course. Wow, that's just also very interesting and I have so many questions from there. Going back to your comment that two weeks after the death is maybe too early, five years after the death is too late, starting with the too early bit, what sorts of things would you say to those clients in terms of why it's too early and if, when they might return to your office?

Felice Kirsh (06:00) Yeah, so I always try to I always give this example, you know, somebody hears that, you know, if you're the executor, you should secure the assets of this of the estate. They read that in the paper. They heard that from a friend. So I'll give you the typical example. You know, the second parent dies. There's three children. They've always had keys. All of them have had keys to their father's house. And one of them, for whatever reason, was appointed executor, not the other two. And that one's

hears from their friend or whatever, my gosh, I better secure the house. So what did they do? They changed the lock without telling their brother and sister. And the optics of that leads the brother and sister to come to a lawyer very often and say, my God, you know, I wanted to go to my father's house and see, I don't know what, and I can't get in. And who knows what my brother did? He might've taken all the jewelry. He might've taken the money under the bed. I mean, obviously I've heard it all. And

Jean Blacklock (06:38) Okay.

Felice Kirsh (06:59) Sometimes I say, know what, why don't you have a discussion with him and see what it's all about before everybody starts running to lawyers. You know, as soon as people run to lawyers, it's a bit of a sinking ship for sure as far as fees go. And you know, people start putting out positions and I always, it doesn't often happen, but I always, you know, suggest to people because they have a relationship, they are siblings, their children are cousins that if you can

try to get on a better footing, try to do so because you're not, you know, it's not like commercial litigation where you never have to see the person anymore. You don't really care. It's not personal injury litigation where you're suing an insurance company. You have no connection with them. This is a family in a high conflict and very emotional situation. So I like to try as much as I can. Listen, it often doesn't work. That's why they're in litigation, but I like to temper it down. don't like to

like fan the flames, which frankly is much easier. It's much easier to fan the flames of a person who comes in your office and is mad, but I like to put down. And then sometimes they just come really early because there's nothing wrong, but they're worried there could be something wrong. So I just say, why don't you wait two months and then come back and let's see, really tell me what the issues are, or maybe things have been.

Jean Blacklock (08:02) Sure.

Felice Kirsh (08:25) Like little things, you who's paying for the funeral when the state account hasn't been opened. These things can all be resolved. You don't need lawyers for those things.

Jean Blacklock (08:33) Right, right. And the question of too late then, it's just sort of three, four years after the fact, a neighbour tells them they might have not got what they should or something like that.

Felice Kirsh (08:45) Yeah, too late becomes an issue of evidence, right? So if you're a beneficiary of an estate and you haven't got an accounting and you should have got one, you know, every couple of years or if it's an ongoing estate or you didn't get one, like it's hard for people to, people don't have sometimes receipts or what we call voucher material for all kinds of things. They didn't know they should keep it. So they didn't keep it.

And then you can't recreate documents that you don't have. Sometimes we have states going back many, many years. I think generally, banks keep records now for seven years. in those kinds of cases, it becomes very hard to recreate the facts. And when it's not an accounting dispute, but maybe a will challenge or dependent support claim or these other cases, people's memories are not that good five years later.

You know, have, then witnesses disappear. don't mean disappear into thin air, but we can't find them. They might've moved, that kind of thing. and then generally the limitation period really for all of civil litigation is two years from, you know, the cause of action, which in the cases I do is generally, but not always, there's exceptions, the date of death. So you don't want to come in five years later because you might have a limitation issue.

Jean Blacklock (10:07) Great. Very interesting. When they come in and it's, you know, my sister's locked me out or that sort of thing so early on, do you get the sense, Felice, that in many of those cases that there was issues in the relationships prior to the death? That the changing of the lock was in a sudden change from happy-happy to going to see you?

Felice Kirsh (10:35) So my experience is that the families that are fighting, the ones that I see in estate litigation have always been fighting. They've been fighting for 10, 20 or 30 years. Or if they haven't been fighting, there's been this underscore of rivalry or disagreement. And on the second parent's death, it just comes to the forefront. They hold it together when their parents are there. Even they hold it together on the first parent's death, but on the second parent's death,

no holds barred and we can now discuss everything that could have ever gone wrong in their life. you know, I will also add, you know, for the listeners that my experience is a bit jaded because I'm dealing with the worst cases, I'm dealing with the state litigation and I think that, you know, doesn't matter 95, 99 % of people in Ontario and Canada, someone in a family dies and they all get along and they see the terms of the will and everything's fine and they never need a lawyer like me.

Jean Blacklock (11:10) I see.

Felice Kirsh (11:35) But in the cases that I see, know, some are easier than others, but they are high conflict, highly emotional. People feel really hard done by. They really want to be heard. They want their story told. And so it kind of takes on a life of its own beyond the legal part of it.

Jean Blacklock (12:00) Yeah. Well, it's just so very helpful that you say this and sure, of course, you'd only see the families that are in conflict. for, again, the listeners, it makes me think that they could view estate planning and discussions with their client far broader than simply the planning documents and all of that if they're aware, as many wealth advisors are, that the family is a conflict-prone family. mean, they might see it in the investment discussions, all of that.

You know, there's many different ways in which families can look for conflict resolution or mediated discussions, whether it's with a psychotherapist or whether it's with a lawyer before the illness, before the death, you know, the pre-planning. We tend to think of it as very objective, you know, the documents, but from what you're saying, there's also being attuned to the conflict.

Felice Kirsh (12:53) And I think, you know, I'm of two views about that because I know, you know, there's this, I don't know if it's a trend or there's this body of thinking that you should have these family meetings and you should tell everybody what you're going to do. And let's just give a simple example. And if you're giving, let's do the second death of the parent again. And if you're giving one child more money because they've helped you, et cetera, et cetera, then you should disclose that.

so that everybody knows it and it's not a shock. And I understand that thinking. I totally respect it and understand it. But I also see the contrary, which is a will is a private document. It's just the person's document. It's not a contract between two people or more. And it's your private document. That's your last wishes. And it's pretty hard to confront somebody.

Jean Blacklock (13:44) Yep, that's right.

Felice Kirsh (13:47) and say, by the way, I was going to do it 33, 33, 33, but Sun A really helped me a lot and I'm going to give him 40 and we're going to divide the other or whatever. And that's not a discussion people want to have. it's their private documents. I feel like, yeah.

Jean Blacklock (14:03) And why should they, to your point, if they don't want to? Yeah.

And it's their wealth.

Felice Kirsh (14:11) And why do children, adult children have to know all these things? And I think the parent thinks like, I'm going to make my decision. I don't want any people knocking on my door telling me what they think, you know, because my brother stayed there. Well, don't you remember that I did this for you last time you were sick? Like they don't want that in their life the last months or years or any amount of time. So I'm totally sympathetic to the testator.

is not going to tell anybody anything. And I don't know that it's always a good idea to have these family meetings. Although I know that it's people like it and it is advised often to do it. I don't know if it's always the best thing in every circumstances. And I'm not more concerned, but I am very concerned about the person's privacy and their ability. This is the only document you write in your life that's it's yours, right?

Otherwise, what are we doing? We're doing contracts. So we're negotiating between two people or more. A will is your own document expressing your wishes when you die. Why does everybody have have input into that? I mean, you have your lawyer and the lawyer should be giving you some good advice. But why do need all this other input? I don't know. I feel like it's a lot of pressure on people.

Jean Blacklock (15:30) Yeah, exactly. in Canada, mean, testamentary freedom is largely there. Certainly there's some obligations for a dependent child or different things, obviously. But I really like what you're saying there. It makes a lot of sense. From that same perspective then, what are your thoughts on documents that are left with the will? A letter explaining the 3333? Or is it the same view that it's really nobody's business and I don't need to write a letter?

Felice Kirsh (16:01) The problem with the letters or the memos and I is there's sort of two lines of case law and I forget the exact words whether that is part of the will or it's not part of the will whether it can be relied on as to show the intent or where it can't be relied on. So because I like certainty I would rather have a sentence right in the will.

Jean Blacklock (16:16) right.

Yes.

Sure. Yeah.

Felice Kirsh (16:29) as opposed to it in a different document. Like I don't mind if someone says, you know, I've got tons of jewelry and we should distribute it as per schedule A. That's a different kind of thing. But a document that is going to say why they made it, person made an unequal distribution or an unexpected distribution, I'd rather have literally two lines in the will, which explains it because there it's out in the open and there's not this whole evidentiary issue when you go to court about whether that is

their intent is it a testamentary in nature? What is that document? There's a lot of case law on it. It's confusing. So that's what I would do, but it's all about, in my view, making it very simple, not 10 paragraphs as to why the testator is doing this, but like two sentences.

Jean Blacklock (17:16) Just confirming that, no, this was no mistake. This is what I wanted, yeah. So moving then to substantive issues that you see, capacity, undue influence, subsequent spouses, kids who haven't left home. You know, the list goes on. Are there ones, three, four that come to mind as, my goodness, you know, and any given Wednesday, it's like you've already seen three of them?

Felice Kirsh (17:19) Yeah.

Well, I think you've touched, your examples are the top ones. you know, a significant portion of my practice deals with will challenges. So, you know, for your listeners to have sort of a little recap here, but basically people subject to a couple exceptions, which you mentioned, people are free in Canada to do whatever they want in their will. The exceptions have to do with the spouse in certain circumstances and dependence in certain circumstances. But

Otherwise people have complete testamentary freedom. And the only way that you can, I'm going to speak specifically now more about Ontario because I think the law is a little different in the West. The only way you can successfully set aside a will is to show that the person is on the grounds of lack of testamentary capacity or undue influence or in the very rare circumstances forgery.

I'm not going to talk about forgery. That's a whole other thing. But in lack of testamentary capacity, it is very difficult. It's a real gray area. As people get older, their cognitive abilities decline. Sometimes, not always, that decline can be gradual. You can have good days and bad days. And I haven't had a case yet where we're dealing with this where it's

so obvious one way or the other, because if it was so obvious one way or the other, it probably wouldn't be a case. So in those cases, you know, I can tell you that the most important evidence is the evidence of the neutral parties. It's not the evidence of the daughter who says it's valid or the son who says it's not valid because they're parties and they want a particular outcome. So their evidence is already biased. So the most important witnesses on these cases are the lawyer who drafted the will.

Jean Blacklock (19:08) Right.

Felice Kirsh (19:32) Did he or she take good notes? Did they canvas everything? Do they speak the same language? Was the major beneficiary in the room, which should never be, it's a big no-no. All these kinds of things. that's really, did they create a good file? mean, sometimes I think I have a bad case just initially and then I see the lawyer's file and my case has gotten better because the lawyer didn't do a good job and then the converse is true. The other important

Witnesses are of course all the medical evidence. know, often people are, you know, they see they certainly see doctors, but in later life might be in and out of the hospital. So all the nursing records, doctors records, test results, all of that, and then dealing specifically with financial planners, they often have files which which can lead to a conclusion one way or the other way, whether the person had capacity or the person doesn't have capacity. So some

Jean Blacklock (20:21) Mm-hmm.

Felice Kirsh (20:31) Sometimes people have been to financial planners for 10, 20 years and the people really know them that well. And that person's evidence might be very helpful to one side of the case, because they can say, yes, I knew Mr. A for 20 years and he always came in by himself. He was very careful. He asked good questions. And the last time I saw him, which was four months before he died, he still asked good questions and he was really good. Or they can be saying the opposite. Or you can have a financial planner that

has been the son's financial planner for 20 years. And in the last year of the person's life, the son says, here's my dad. He's going to move all his assets to you. And here's what we want to do. And the financial planner takes their instructions from the son. That is a big, big red flag.

Jean Blacklock (21:04) Mm-hmm.

Right, right. I enjoy reading the cases on testamentary capacity because often the judges are very empathetic. I don't remember the case name, but there was one where the judge basically said, you know, look, the deceased was a cancer patient. Of course, he had good days and he had bad days. Like, and I'm sure in that case, the judge held that there was capacity there. Can you sort of briefly talk about the different

things that the court expects a person to have known for their assets, who they benefit, so on.

Felice Kirsh (21:47) So, sure. So, I'm going to give you the test for capacity, which is from an old English case called, I think, Banks and Goodfellow. It's easy for me to say it. Of course, we could talk about what it means for two hours, but let's talk about what the test is. The test is a three-part test. One is you have to understand the nature of your assets. So, you don't have to know that you have $4,325,000. know, nobody knows exactly, but you have to say to

Jean Blacklock (21:54) Mm-hmm.

what it all means.

Felice Kirsh (22:17) You have to be able to say, I have a house and it's worth two million dollars and then I have another two million dollars investments, some of it's in this and that. So the nature and extent of your assets, you have to understand. You have to understand who would like, I think they call it like the natural affection of your bounty or something like that. Some kind of old English thing. But basically what it means is who's around you. Like, you know, I have two kids.

You don't have to like them. You don't have to give them anything, but you kind of have to know that you have two kids. You have a spouse. That, right? And then the third thing you have to know, which is usually doesn't come into play, is that what you're doing when you're signing your will is that you're signing a will. You're not signing a contract. You have to know, I'm disposing of my assets. So those are the three factors, but it's really the first two that come into play. And really it's all about

Jean Blacklock (22:49) They're there,

Felice Kirsh (23:14) You know, it's all about the evidence around you. Like, for instance, we have people who like older people who play cards. So I think, you know, they play cards and they play cards right up till, you know, two months before they die. And that's great. Well, someone I would say someone who can play cards and understand all the different rules because I don't play cards too hard for me would without to me would show capacity. Right. That's the thing that shows capacity. Does the person drive? OK, you have to have some amount of capacity to drive.

is the person on that on the other side is the person completely housebound and they're reliant on everybody else to give them their news to and they really don't know what's going on. You know, not only in sort of the outside outside world, but kind of beyond their four doors and then just moving along to undo influence. So. Undo influence usually goes along with testamentary capacity, because there's hardly a case where somebody

Jean Blacklock (24:04) Mm-hmm.

Felice Kirsh (24:14) who's cognitive, it just kind of goes together. If your cognitive ability is decreasing, you are more susceptible to influence. So we always plead them together. We always deal with them together, or mostly always. There's a big difference for the burden of proof, and this is, think, important, which is that the burden of proof on capacity is on the person propounding the will, the people who want the will to be valid.

Whereas the burden of proof on undue influence is on the people challenging the will, which is very hard because it's very hard. People who are unduly influencing their parents and saying, you know, if you don't put me in the wheel for 80%, I'm not going to get you dinner every night. Nobody has that evidence because that person's not saying it in front of everybody. So, so it's hard to get the evidence of undue influence at capacity is in a way of like a case just on undue influence is few and far between.

just to show you how they interface. You know, it's the typical situation where maybe one child is becoming more of the caregiver, right? That one child is bringing the meals. That one child is taking them to appointments. The other two are around, but they're just not doing as much. So then maybe that child starts to get a few gifts because the parent says, you you took me here, you took me there. I see your...

You know, your son wants to take some piano lessons. You don't have a piano. Here's $10,000 for a piano. And that's kind of how it starts. And then all of a sudden it gets to the will and that person's getting more, which might be fine or not fine. But as the person's cognitive ability goes down, maybe the ability to influence goes up and they're always intertwined.

Jean Blacklock (25:53) Sure.

Yeah, the ability to influence and, you know, proximity. If the other two children are fictional children that you mentioned are living in California and Texas, and the other child is in Toronto. And going back to our earlier discussion about this is a very private will and a person can choose to leave 40 % to one child and split the other. So in this case, say there is cognitive decline, you know, normal aging sort of thing.

But the individual, the elderly individual is thinking, this child has helped me so much, I would like to leave them 40%. What are your thoughts then on that individual or perhaps even the caregiving child making sure that they're not, I guess there's no way to make sure, but making it a reduced probability that there would be a claim on testamentary capacity and undue influence? Is it legal advice at the time?

Felice Kirsh (26:51) You know, that the person it's really up to the testator, right? It's up to the testator to go to a good lawyer to go to a lawyer that speaks their language. I've had the number of cases of somebody going to a lawyer who doesn't speak their language and it hasn't been interpreted. Who interpreted it? Well, if the son interpreted, that's not very good. If, you know, the receptionist came in and interpreted, then that's okay. So that's really where

Jean Blacklock (27:08) Yes.

Felice Kirsh (27:19) the lawyer has to do a good job. Like in some situations, lawyers actually get capacity assessments and they have it in their file. sometimes some lawyers have even video people. And so they can show that if they're worried that this could be a problem. But it's not really, you know, that the child who's benefiting to try to do that, all they can do is really suggest a lawyer and then stay on the picture. Because the more and when I say say this, stay out of the picture, it's not that easy because

Jean Blacklock (27:45) Yes.

Felice Kirsh (27:50) even driving them to the lawyer's office. I can make a whole thing about driving. you drove them and then you went upstairs and then you sat in the lobby and then you took them home. of course, you sometimes I say, you know, in certain and I don't want to at all like, like not, you know, think that older people can't make their own decisions. But in the kinds of cases that I see with older people, like sometimes I say they're only as good as the last person who put an idea in their head. So

Jean Blacklock (27:52) Sounds suspicious.

Felice Kirsh (28:19) If your son is taking you and telling you everything and bothering you and then you go into the lawyer's office and the son is still there, did you sure you said that? And some lawyers are not as careful as others. Some lawyers, for instance, will have the son come in even just to say hello. the older people are saying, my God, I better put this son in for a lot because he took me here, he's with me all the time, he's going to ask me what I did and they're vulnerable and they get scared.

Jean Blacklock (28:48) Yes.

Felice Kirsh (28:49) So, I guess like the real moral of the story is to do a will. The younger you are, the better. I don't mean you can't, you should of course look at your will every five years, we always say, and you can always revise it. But when you do a will, when you're in the hospital and then you pass away a little bit later, those are the ones that become more suspicious. You have all kinds of wills that are signed in the hospital. I was once called when I was...

long, long ago by, I forget, I can't remember, nephew or son. And I went to the hospital and the nephew or son was not in the room. And I asked the person questions. It was a woman. And she said to me something like, well, I'm going to put you in the will. So like right then and there, I knew that that's not a will I was going to draft. And I don't really draft wills. That was sort of way back. So it's hard for the children, especially the child who wants the will changed or something,

Jean Blacklock (29:33) dear.

Felice Kirsh (29:49) It's hard for them to make the evidence. It's really not for them to do it because it's going to look bad for them.

Jean Blacklock (29:54) Right. So, so fascinating. Really could talk about this the entire session here. But moving on to subsequent spouses, I would think that is this also an area in which there are disputes between the stepchildren and the subsequent spouse that's surviving? Any thoughts on this?

Felice Kirsh (30:17) There are huge, huge, huge disputes. It's always the second wife. I don't really think I've ever had a case where the second husband was the person suing the state. It always seems to be the second wife. Maybe it's because women outlive men generally. I don't know. I think there's this.

Jean Blacklock (30:26) Okay.

Felice Kirsh (30:37) you know, kind of attitude of some adult children. Again, I'm biased. I only see the worst cases that, you know, it's all good and great. We're really happy my dad has this new common law spouse. It's great. We don't have to take care of my dad. This is fantastic. Ten years, 15 years, sometimes the second spouse is a longer situation than the first spouse. But then, you know, the will provides something for the second spouse, which under dependent support cases, it should.

or it doesn't provide enough and the second spouse makes a claim and the children are you know, no, you you don't deserve it, etc, etc. Second spouses and children is a big area of estate litigation.

Jean Blacklock (31:21) So tough question, I think, but what do people get wrong then? What are the things that...

Felice Kirsh (31:26) Yeah, so I'm gonna say something that that a lot of people a lot of lawyers and probably planners don't agree with but I think what a lot of people do in in wills for a second spouse is they set up a life interest for their second spouse so they say You can live in my house for the remainder of your life and upon your death You know the proceeds will go to my three children and I don't like in and

a lot of people disagree with me, I don't like putting people together in sort of a legal relationship when they don't like each other in the first place. So I prefer when the second spouse is given X dollars upfront and they each go their own way. Now people don't like that because the children don't want to see the second spouse getting, let's just make an example, getting a million dollars upfront because she could die.

two years from now and she didn't need the million dollars and that's the thinking, right? So people think, well, let's give her a life interest. She can live on the income from these states. She can stay in the house and when she dies, we'll still get the house. But the problem is, as I said, you're keeping people together and it's kind of, it's the same thing as spousal support. You're putting together people in a legal relationship that don't want to be together. I also say in the case of

Jean Blacklock (32:46) Yeah. Yeah.

Felice Kirsh (32:49) the second spouse and what I do is really the kids are sitting around waiting for the second spouse to die. That's not a good thing. It's a terrible thing, right? Because they're not, and it's often the children who are the estate trustees. And so in a typical situation, let's say the wife is entitled to income and there's the power to unquote, junk capital. So the wife says, know,

Jean Blacklock (32:56) Yes. That's not a good thing.

Felice Kirsh (33:16) I need to put a new roof on this house or I need to, I'd like to go on a vacation. need some, my asthma is bothering me. I'd like to go to Arizona. I'd like to have $10,000. And it's, think very demeaning to have to go to your husband's children and say, can I have that $10,000? And then they say, well, you know, you $10,000 six months ago for this and that. Like, I think it's very demeaning for the spouse.

and it's a lot of pressure on these state trustees and it can be a job that can last for 10 or 20 years. I wouldn't want to be an estate trustee in these circumstances. It's really, really hard. think that there's, from lawyers, from planners, there's a tendency to kind of make things a bit more complicated than they have to be. Again, I admit that I'm running uphill here against a what a lot of people think.

But my experience tells me the simpler the better. Separate the parties, let them go on their way, and you can't rule from the grave. You cannot predict everything that could possibly happen to your family. So just make it simple, make it the best you can.

Jean Blacklock (34:28) Yeah. Well, it strikes me, I mean, the estate planning I did was many years ago. you know, even then there was a sense that sort of it was very old, quite old fashioned planning, whether it was the spouse from, you know, the original spouse, husband dies and the wife and the mother of the children still gets a life interest. I mean, that was really old fashioned. But now hearing you say that for second spouses or third spouses, the life interest is still a thing in planning.

This isn't really a question, it's more just a comment that to your point, it seems very old fashioned and demeaning. And since you say that isn't the second husband usually getting these trusts, it does seem like an odd way to go.

Felice Kirsh (35:08) Right and what happens when we you these cases go to mediation all these cases what happens is you end up saying to your client let's say I'm representing the second spouse you know and I'm just gonna make up numbers you know do you want ten thousand dollars

every month for the rest of your life or do you want $400,000 now? And then you have to get into all these things about your real life expectancy and all that. it's, don't, you know, I don't really like it. like when I'm on the side of the person, I like to get my, I tell my clients to take their money and run, like take their money, you be in charge of your own money. If you can't spend it properly, that's your problem. But don't be tied together.

Jean Blacklock (35:52) Yes.

Felice Kirsh (35:55) for the next 10 or 20 years. And there's estate trustee fees every year. There's tax returns to be filed every year. You've created an entity, a legal entity, the estate that's going on for as long as the person lives.

Jean Blacklock (36:08) Right, right, very complicated. So let's move on then to settlement. Or, and maybe before asking about settlement, just generally speaking, how it goes from that first meeting, the client hasn't come in too early or too late, it's perfect like Goldilocks, and there in front of you, there is a claim. How do you start to paint the picture for how long this is going to go and what your fees might look like?

Felice Kirsh (36:36) Okay, very good question. I would say that, you know, my practice is to tell clients right from the start that the truth is, which is that most of these cases, all civil litigation in Ontario, but I'll just stick to state litigation, you know, 95%, 90%, whatever, settle, they never go to a full trial. That doesn't mean there can't be some.

what we call motions in the middle or some kind of contested proceeding, but they don't go to a final determination. And the reason generally is because it takes too long and it's too expensive. So right from the beginning, I think you have to gear your clients towards resolution. They're not ready for it. They're for sure not, but you have to keep legal fees in mind and you have to understand what's happening. And I'll give you an example that always comes up.

A big source of controversy is the estate trustee compensation. So if you're a 25 % beneficiary and the estate trustee is claiming $100,000, people have to get a handle on for every dollar you reduce it by, you're only getting 20, that's only helping you by 25 cents. And people don't understand that. They just see a big number and they say, my God, my brother's claiming $100,000 and we should get it down to 50.

But that's only the savings of 25 % to each person. So I'm always trying to gear people towards resolution. They're not ready to resolve at the beginning. And the second part of your question is with respect to a fee estimate, which is a totally good question people should ask. And they often do ask me. And even if they don't ask me, I like to give it. And all I can say is what my hourly rate is. I sometimes can.

Jean Blacklock (38:28) Mm-hmm.

Felice Kirsh (38:30) ballpark, if we have some pleadings and there's not too much commotion in the middle and everybody's cooperating and we get to mediation, it will be this much. But that's subject to change if we can't get production orders, if everything is controversy. I think that two reasonable lawyers can probably solve most cases. Maybe some.

People would disagree with me and all that, but it's often the clients. really is. And I see that because I'm also a mediator. I do a of mediations. And mostly the lawyers know that this is not worth it, that there is no... I tell clients there's no certainty in court. Like your story is good. You have a lot of good points. But I tell them, you know, I've seen many cases and let's say there's a hundred facts in every case.

Jean Blacklock (39:23) Yes.

Felice Kirsh (39:24) I've never seen one where all the facts are going my way. Not one. There's never been such a case. So be careful because, you know, in some cases like a will challenge, it's all or nothing. You have a lot to lose. It's not like a car accident where a judge can say, you know, this, the pedestrian was 30 % responsible. This car was 15 % responsible. The bus was, I can't do the math, was whatever part responsible. If you lose a will challenge, you lose a will challenge. If you win, it's all great.

Jean Blacklock (39:48) Yeah.

the will is upheld or right. Yeah, there's no gray area. That's a good point.

Felice Kirsh (39:55) Yes. Yeah. So, with respect to settlement resolution for probably the last, I think, 20 years or so, mediation is mandatory in Toronto and a few other areas in Ontario, but mostly everybody does it. And that's where most cases settle, if not before. And it's a really good thing for clients because they can tell their story in front of a neutral person and

you can get a resolution which is creative because sometimes there can be a win-win but there's no win-win in court. So sometimes one person wants the house and one person wants the cash and it's okay or sometimes you know sometimes people can agree on something even though legally it's not going to work that way because it's all or nothing. So mediation is a time to be creative, a time for the clients to have their day in court without being in court, without the rules of evidence, with I

like to choose a mediator who has expertise in this area of law. I like an active mediator. I don't want to just go back and forth with offers. I like someone to tell me, at least I don't think that argument is correct. And let's rethink this, right? So that's where most estate litigation goes. And as I said, generally all settles before mediation, at mediation, after mediation. There's so many obstacles to getting to trial.

pre-trials, you judicial mediations. I cases where we've gone four times that it's not, you can't get a trial date that fast. And it's incredibly expensive.

Jean Blacklock (41:36) Right. I'm curious about something you said, Felice, when you said at the very beginning or in the first couple of meetings with clients, they're not ready for a resolution. I would think that when they understand the scope of legal fees and the rates and so on, that they would be excited about the possibility of Ontario and other jurisdictions having mediation and really being proactive about it. What is holding them back from being, as you said, ready for it?

Felice Kirsh (42:05) They're too angry and they haven't been heard. So they need some letters going back and forth which says, you know, your client, da da da da da, and then they, like they need the story heard and they need to see how expensive a lawyer is. They're not ready, you know, there's lots of cases that I can probably tell quickly where it's gonna end, but they're not ready to hear that. They're not ready to see the end because

Jean Blacklock (42:07) okay.

okay.

Felice Kirsh (42:34) You know, it's too soon after the person's death. They haven't had the grieving process. They're too angry with the other side, whoever that is, and they haven't told their story. They want to be heard. And, you know, good mediators can really do that. You know, I've seen so many mediators where they take the time to say to the client, you know, just something like this, like, that is wonderful that you took care of your father for the last five years and nothing is going to take that away from you.

Jean Blacklock (43:03) right. That must mean a lot to clients to hear that.

Felice Kirsh (43:03) like full stock. But now we have a different, now we have this issue here. And you know, and I also, you know, I say to clients like nothing is going to change the way your brother or sister thinks. no court, if people lose at court, they blame the judge or sometimes they blame the lawyers. Like people don't change their mind. Nobody, I've never seen somebody say, you know what, my gosh, you know what, my brother really was a great guy.

I should have thanked them all the years. I've never seen that.

Jean Blacklock (43:35) Right, right, that's very interesting. You mentioned, I know you're a mediator and you mentioned the thought process you go through to choose a mediator. So do you and your fellow mediators sort of switch roles? like in some cases you're a litigator and people approach you to run the whole file but then you retain a mediator, how does that process work?

Felice Kirsh (44:00) Well, I mostly am the lawyer on files, but I also do mediations. But many retired judges are mediators or many retired practitioners are mediators. So not everybody is an active practice and does mediation. Many do like have the retired or the retired judges. you know, generally the lawyers pick the mediator. So I will confer with the lawyer on the other side. It's almost never controversial. We always sort of come up with the same few names.

Jean Blacklock (44:03) Yep.

I see.

Felice Kirsh (44:29) Some are more expensive than others, so it might depend on how much is at stake. know, sometimes I think that my clients would benefit from a retired judge because I think they're, because I would like to be able to say to them, okay, here's what Justice so-and-so says about your case. That could have been your judge. I mean, not now because of course they're retired. So think about that. Some people are, yes, some people need that retired judge.

Jean Blacklock (44:53) the credibility issue is strong, yeah.

Felice Kirsh (44:58) Some people need a woman. Some people don't want to have a woman. Like there's a lot of dynamics, a lot of things going on. To me, the most important thing, and I think I stated it earlier, is I generally want a mediator who has expertise in this area of law. Having said that, I find some of the retired judges that I have used unbelievably great, even though they didn't specialize in this area because judges

Jean Blacklock (45:05) Sure.

Felice Kirsh (45:28) do everything. They're just so smart that they just get it.

Jean Blacklock (45:32) Sure, sure. And then for you, you will be asked to be a mediator and you would take that on in the midst of your busy litigation practice if you found the case interesting or if you maybe...

Felice Kirsh (45:43) I always take them on because I love it. I find it so interesting to see both sides at work from just a work perspective. When I say an easy case, I mean that it's in and it's out, right? Like litigation goes on for years. So I love a case where I read the briefs, I think about it, I make some notes, and I go in for a day and I try my absolute best to solve the case. If I solve it,

Jean Blacklock (45:45) Okay.

okay.

Sure, sure, I get it.

Felice Kirsh (46:10) I'm so happy if I don't solve it, I personally think, I think of it as a personal failure. But beyond that, I'm in and I'm out and frankly I get paid. Whereas litigation, you know, goes on for a long, long time. And I think, you know, the mediator's perspective, I think it helps me as a lawyer, because I see, I've seen it, what's going on in different rooms. And it's, you know, the human dynamics of it is just unbelievable.

Jean Blacklock (46:37) fantastic. So in a way, it's sort of professional development for you to have those mediation days. that's really interesting. So in your experience, what are some ways in which you've seen advisors, be it a banker, a portfolio manager, a chartered accountant, be helpful to clients? Have you, you know, have you heard of ways in which, or are they best advised just to keep out of it, just keep their opinions to themselves?

Felice Kirsh (46:40) Yeah.

I don't think it's a matter of necessarily being helpful or unhelpful, but rather to take good notes, to be aware of the issues, to be aware if someone new is coming in, how they were referred to you. Are you letting that other person in the room? Is this an unusual situation where you should be worried about it? Because we can get your file produced, pursuant to a court order.

Just like we get the medical files, the lawyers files, can get the accountant's files, we can get the financial planner's files, and they have to produce them. And just like you and I and everybody in their professional life, they want their file to look good. So it's always good to take notes, to document what you have done, to be honest, to be candid, to be taking instructions from the right person. I think that's really where people get in trouble.

Jean Blacklock (47:57) Right.

Felice Kirsh (48:00) planners, accountants, lawyers, anybody, right? you know, yeah, like I can say, you for me, I often have a group of clients. So I often have, you all the siblings or all the nieces and nephews. And of course, I often have one person as the liaison because I can't speak to seven people all the time. But for important decisions, I make sure that I'm speaking to all the seven people because that's when professionals get sued.

Jean Blacklock (48:04) Remember who your client is.

Felice Kirsh (48:29) And for a financial planner, you know, if they're constantly or not even constantly, if they're taking instructions where, you know, whether over the phone, I know you can take trading instructions like that usually, from, know, it doesn't matter from the daughter, from the wife, from the husband, from someone who's not your client, that should clue you into why isn't that person calling me? Because all my other clients call me. So why is this person not calling me or not coming in and they're sending, there's a proxy? Well, maybe these aren't their instructions.

And so, you you won't be able to stand behind, you know, when someone wants to set aside a life insurance designation or an RSP designation, you won't be able to stand up, you know, I don't want to say in court because it doesn't get that far, you know, withstand some discussions with the lawyer about, well, did you explain that, you know, the RSP was worth, doesn't matter, a million dollars and that it was going to your...

son and daughter and now you've put it to your daughter. Did you understand that? Did you know that? Who did you get those instructions from? That's where the planners, investment people, all these people can really help themselves.

Jean Blacklock (49:36) Right. That's excellent. And I recall, Felice, from an earlier conversation that we had, you mentioned texts. And I think that's worth mentioning again, how I think some people might not be aware that those things can be definitely subpoenaed. You know, I think the story you shared with me was that clients say how terrible the texts are that they received from their brother, and then you get a copy of the text that your client sent to the brother, you know? So I people, including advisors, need to be aware that all of that is fair game.

Felice Kirsh (50:06) You know, I have to say that texts and emails are a boon to litigation lawyers because we never had that kind of evidence, right? So if someone said to me, know, well, my brother told me this and the other side will said, no, you know, I told my brother something else we didn't know. But now we have all this written evidence. As far as texting is concerned, and I'm extremely old fashioned, like I don't think texting is the relationship between professionals and their clients.

So my clients don't text me and I don't text my clients. That's how we have email for that. And, you know, one thing I say to clients when they come in is, you know, have you been texting the brother sister this one that, yes, we've been texting. I said, stop, stop right now, because you're just creating evidence, all of which is relevant. And I'm sure it doesn't look good and it never looks good. It doesn't look good on either side. you know, I don't know, obviously, financial advisors,

I'm sure, I don't know, a governing body and they have rules and we have rules of professional conduct, but it's certainly not in our rules of professional conduct that you can't text people, you can. But I would just be very careful. I also think like texting is where you can make a mistake because people are paying us, people are paying advisors for their expertise.

Jean Blacklock (51:19) Yes.

Felice Kirsh (51:27) further advice. It's not like, go to the store and buy me a chocolate bar. I changed my mind. Buy me a bag of chips. Okay, yeah, I'm doing it. And I always think like that's where I can make a mistake if I'm responding too quickly. So an email to me has more of a formality to it and more of a pause to it. Whereas a texting is like, we're doing this all day. sure, you're going to bring your mother to see me. Yeah. Okay. she can't come. She's not feeling well. But here's my instructions. Like, I don't like this is not for texting.

Jean Blacklock (51:39) Yes.

to stop. yeah, yeah. Very, very interesting. So we've reached the end. This has just been so fascinating. I could talk to you all afternoon. But I will ask you if there's anything that you were hoping to cover in our conversation today that we didn't get to.

Felice Kirsh (51:59) Stop.

I so. think we covered a lot of topics and I think, you know, for financial planners, I think they definitely help their clients. They help their clients understand all kinds of complex things. And, you know, my advice is really to explain things simply, to make some notes, to make sure that you are taking instructions from your actual client and not somebody else. And just to be aware of some of the issues

that we've discussed that end up in litigation so that it's not that you can prevent yourself from being a witness, but if you are a witness or if the file is ordered to be produced, that you're proud of the work you've done. You're proud of what you did and you think you did a good, reasonable, timely, ethical job and fulfilled your duties.

Jean Blacklock (52:57) Yeah.

Yeah, that's excellent advice. And the thing is too, we never ever know when a client or a file will be going to a court matter or a dispute. We might think, this is sounding like in conflict, but we don't really know. So moral of the story is to make sure that every file is well-tended, notes up to date, and so on. Well, thank you again, Felice. It's been a pleasure. And all the best. Bye for now.

Felice Kirsh (53:34) Okay, thank you. This was very interesting for me. I've never done a podcast. So it was lots of fun and I hope informative for your listeners.

Jean Blacklock (53:43) Yes, it is. Thanks very much. Bye.

Felice Kirsh (53:45) Thank you.