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 some 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”. 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. For further information or to schedule a consultation please contact Ashley Doidge of Devry Smith Frank LLP at 416-446-3348 or ashley.doidge@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesAugust 29, 2019July 5, 2023
Legal Grounds For Will Challenges The loss of a loved one can be a devastating and overwhelming experience. While mourning a loss, you may find yourself scrambling to ensure that all of your family’s affairs are in order, especially if you are listed as an Executor, Administrator, or Trustee of an Estate or Trust for the deceased. However, many individuals have also experienced being left out of the deceased’s will and believe that they are entitled to a share. If someone comes to that realization, it is difficult to determine where to begin, as the law surrounding challenges to a will is complicated. Devry Smith Frank LLP’s (DSF) Estates Litigation lawyers are able to advise clients on how to proceed with your matter and provide advice and support from start to finish, looking out for your best interests, to achieve the best result when challenging the validity of a will. There are three common types of legal grounds on which you may challenge the validity of a will: If the will fails to comply with the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. Wills prepared by legal professionals will comply with these rules, while a majority of home-made ones do not. If the deceased had the capacity to make the will. Did the deceased know what property and assets they have and that the will would be disposing of these assets after their death? Did they have a true understanding of any obligations they may have to spouses and children? A challenge on this ground would require hiring expert medical witnesses to review medical records and retroactively assess the deceased’s mental capacity at the time the will was made. Whether there were any suspicious circumstances surrounding the drafting of the will or whether the deceased was under any undue influence. The will must represent the true intentions of the deceased. Undue influence can occur when a person feels compelled to honour the wishes of someone making a direct or implied threat, or attempts to leverage a person’s weakened state to their advantage. A child convinces a parent to remove a sibling from the will. A will signed on the deceased’s death bed leaving everything to a caregiver may give rise to a challenge on the grounds of suspicious circumstances. If you are experiencing any of the issues mentioned above, it is important to seek qualified legal advice from an Estates Litigation lawyer. For further information or assistance, please contact our office directly by calling (416) 449-1400 or emailing info@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesMay 16, 2018July 5, 2023
