Mary B. Hamilton—In the Spotlight

Practice Point

Mary B. Hamilton—In the Spotlight

July 2017

This month’s spotlight is on longtime CLEBC volunteer Mary B. Hamilton of Alexander Holburn, editorial board member and author of numerous CLEBC wills and estates practice publications.

When did you first get involved with CLEBC? What motivates you to continue sharing your time and expertise?

When I was new in the field, I was a CLEBC course attendee learning the basics of estate planning and administration. I first contributed to CLEBC’s publications in 1997, when Wills and Personal Planning Precedents: An Annotated Guide was initially published. Peter Bogardus, KC and I had overhauled our wills precedents at Davis & Company (as it then was), and gone through that work, we thought we should contribute it to the profession to save others the trouble of going through the same exercise. At that time, CLEBC wanted to produce a wills precedent publication, so the timing was perfect. I continue to share my expertise because I think the best way to learn is to share. Sharing keeps me current and I think if we can share knowledge and help each other out, we should do that.

What are you currently working on (or have you most recently worked on) with CLEBC?

I continue to do annual updates for Wills and Personal Planning Precedents: An Annotated Guide with Sadie Wetzel of DLA Piper (Canada) LLP now that Peter has retired. I am also on the editorial board of BC Probate & Estate Administration Practice Manual and BC Estate Planning & Wealth Preservation, along with being an author for the Annotated Estates Practice and Wills, Estates and Succession Act Transition Guide. I also enjoyed recently presenting at the Estate Planning Express – 15 Minute Topics course.

What inspired you to focus your practice on wills, estates, and trusts?

A few things. One, who you work with is always important. Peter Bogardus was an amazing mentor who wanted a junior, and I was delighted to have that opportunity. Two, I very much enjoy having no one “on the other side”. In my practice, it’s typically just my clients and me. Although we consider other people and many factors, for the most part we work directly towards the clients’ goals. And, three, I find the wills and estates bar is filled with exceptionally nice people.

In your opinion, what makes wills, estates, and trusts practice different from other practice areas?

I think there’s a real appreciation by clients for lawyers’ assistance. Few people want to be in litigation or want legal costs as added expenses in their business transactions. However, I find on the planning side, clients are just so happy when their wills or estate plans are complete. On the estate administration side, I enjoy being able to helping people during what is often a terribly emotional time. If you as a lawyer can make any legal process easy and accessible, clients are very appreciative of your help.

What are some of the biggest rewards and challenges in your practice area?

A big reward is mentoring young lawyers and seeing them grow into their practices. A big challenge is educating the public about the need for and value of experienced legal advice when drafting wills. Decades ago, a tariff system for estates (not in existence since the 1980s) resulted in a business model where lawyers would use artificially inexpensive wills as a way to acquire estate administration business. This led to a misperception still prevalent today that a will is a simple, fill-in-the form exercise that should be provided very inexpensively. However, proper will drafting and estate planning involves full information, experience, and judgment on topics such as who would make a better executor, what, when, and how a child could inherit, and whether the estate plan should include trusts.

What new trends/new requests from clients (if any) are you seeing currently emerge in this area?

An emerging trend is requests for alter ego trusts and joint partner trusts. The assets held by these trusts are not included in clients’ estates, and on the death of the settlors of the trust, trustees can distribute assets to trust beneficiaries according to the trust documents without obtaining probate and paying probate fees. Many clients are asking about trusts and many financial advisors and accountants are recommending their clients consider them.

What are the top skills that a successful lawyer practicing in wills, estates, and trusts must have?

I think you need to be comfortable dealing with complex legal issues but also very personal issues such as death and relationships. You need to be attuned to what clients are saying and then what they are really saying about family situations or personal relationships. Also, with our aging population, you need to be able to deal with issues of capacity. For example, if a child brings an elderly parent in to update their will, you need to figure out whether the child is acting in the parent’s best interest, or whether the child has another agenda, or perhaps a bit of both. In these situations, you have parse out what the client really wants. And remember, as lawyers, we aren’t trained on these practical matters of capacity, and we have to be able to work with medical professionals to figure out these key issues that turn on the facts.

You are also involved in charity law. Tell us about your thoughts on the future of this area.

Charity law is becoming a more and more complicated field. For example, donors now are asking whether they can gift money to charities with strings attached, or what happens when charities don’t follow donor wishes. For lawyers representing the organizations, endowments are becoming very sophisticated in structure, with endowments intended to exist for varying amounts of time or to have varying degrees of restriction on their purposes. Charity law is a complicated but professionally rewarding area, and the donors and people working with charities and other not-for-profit organizations are incredible individuals looking to make a difference.