executor

What is Probate?

What is Probate?

After a person dies in Ontario, the executor may need to have the deceased’s Will “probated” by the Superior Court of Justice in order to obtain a “Certificate of Appointment of Estate Trustee With (or Without) a Will”.

The Certificate of Appointment of Estate Trustee With (or Without) a Will” may be required in order for the executor to access the deceased’s bank accounts and sell the deceased’s real estate. 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 ().

Court of Appeal Rules on Testamentary Freedom

signing papers

From Spring 2016:

Estate Litigation lawyers were sad when the Ontario Court of Appeal recently overturned a lower court decision and effectively squashed estate litigators’ hopes of increased business litigating Wills.

The case is now famously known as the Spence Decision (Spence v. BMO Trust Co).

The case was about the validity of a Will in which a father excluded one of his two daughters. He specifically wrote:

“I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.”

After the father died, the same daughter went to court and alleged that the real reason her father didn’t leave her money was because the father of her baby was white (the deceased

testator was black). The daughter called on the trial court to set aside the Will.

Affidavit evidence supported the daughter’s allegations and the lower court concluded that the Will, despite not offending public policy on its face, should be set aside. The result is that the will is void resulting in an intestacy (that is, dying as if there was no will). The estate would be split between the father’s two daughters.

The Court of Appeal disagreed with the lower court and decided that the Will should not be set aside and that the daughter challenging the will should not inherit. The Court of Appeal stated:

“The court’s power to interfere with a testator’s testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator’s testamentary choices as distasteful, offensive, vengeful or small-minded.”

Do you think the Court of Appeal got it right?

In recent years there has been quite a bit of debate surrounding testamentary freedom. Some people are of the opinion they should be able give their hard-earned money to the persons and causes of their choice; that a parent should have the choice to leave money to their kids, or not to leave money to their kids; that a dog owner can leave money for the care of their dogs; that a husband can leave money to his mistress.

If you haven’t made a Will consider calling us and booking an appointment to review your wishes. Without a will, your assets will be administered in accordance with intestacy laws.

We can be reached directly at 416-224-1996 ext 217 or by email at ">.

Ashley Doidge (Associate) and Eric Gossin (Managing Partner).

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Disclaimer: Welcome! Please note that this blog and its posts are intended for educational uses only. They are not intended as, nor should they be construed by the user as legal advice.  The use of this blog and this post does not create a lawyer-client relationship. Should you require legal advice for your particular situation then please feel free to contact us to arrange for an in-person consultation.