estate administration

Avoiding Guardianship Litigation with Carefully Considered Powers of Attorney

With Canada’s aging population, there has been an increase in disputes within families about who should be making personal and financial decisions on behalf of incapable members of the family.

Many of these disputes could be avoided with properly drafted Powers of Attorney. Read more →

What if your spouse shortchanges you in their will?

What if your spouse shortchanges you in their will?

If you are unhappy with the amount your spouse left you in their will, you may have legal options, for example:

Option 1: Instead of taking under the will consider electing for “Equalization” if you were married.

Ontario’s  Family Law Act (“FLA”) views marriage as an economic partnership and gives married spouses the option to either

  •  accept entitlement under their spouse’s will

OR

  •  make an election for equalization of “net family property”. [Net family property is a complex formula which cannot be easily defined – speak to us for further information].

Requirements: be married, no enforceable marriage contract etc

Deadline: The surviving spouse of a marriage must file for equalization within six (6) months of the death. Otherwise, they may lose out on the opportunity to make this claim.

Option 2: File for a Dependant Support claim

If you qualify as a “dependant” spouse, even if unmarried, you can make a Dependant Support claim under the Succession Law Reform Act. A court can compel the deceased’s estate to provide adequate provision of support for you.

Adequate provision for of support is determined by considering many factors, including:

  • the surviving spouse’s financial circumstances;
  • the legal obligations of the deceased;
  • the moral obligations of the deceased. When considering moral obligations, the court has often considered society’s expectations of what a judicious person would do in the circumstances (Cummings Cummings);
  • the dependant’s capacity to contribute to their own support;
  • the dependant’s age, physical and mental health; and
  • the length of the relationship
  • contributions to the deceased’s realization of career potential

Requirements: The surviving spouse would need to prove that the deceased was actually providing support or was under a legal obligation to provide support immediately before their death.

Deadline: It is recommended that the surviving spouse give notice to the estate immediately. The spouse must commence a Court application  within six (6) months of the issuance of the Certificate of Appointment of Estate Trustee (the granting of probate).

Remember, the rights of a spouse to equalization of net family property and to Dependant Support are not mutually exclusive. After equalization, a married spouse may still be able to bring a claim for dependant support if they are not provided with adequate provision for proper support.

Thanks for Reading!

For further information or to schedule a consultation please contact  Ashley Doidge at 416-224-1996, ext. 217 () or Eric Gossin at 416-224-1996 ext. 210 ().