Estate litigation is often a contentious and emotionally charged issue. Following the death of a loved one, different parties may have conflicting notions of what they are owed. Resolving those tensions in court can be a long, difficult, and often expensive process.
That’s why it’s critical to understand the basics of estate law in Ontario. The following is a brief primer.
Draft a Will
First and foremost, it’s important to enlist the help of a professional drafting your will to ensure your wishes are followed when it comes time to pass on your assets. A clearly drafted will minimizes the potential for any conflict, as does appointing an executor you trust.
Note that when you get married, any will you drafted prior to your marriage becomes invalid and if you pass away without redrafting a will, you will have died intestate.
What Does “Intestate” Mean?
It means that your property will be distributed according to provincial law. Your spouse will automatically be entitled to the first $200,000 of your estate, and if you have children, any amount above that will be divided amongst your spouse and children according to a formula. If you don’t have a spouse or children, the Ontario Succession Law Reform Act lays out a process for determining your next of kin.
Crucially, a common-law spouse or other non-dependent family members do not have an automatic right to your assets. In intestate cases, they must file a dependent support claim.
Testamentary Freedom
Testamentary Freedom is the principal that protects your right to distribute your estate as you see fit — even if it conflicts with other parties’ notions of what may be fair.
In one landmark case from the Ontario Court of Appeal, Spence vs. BMO Trust, Verolin Spence challenged her late father’s will. Rector Emmanuel Spence had been estranged from Verolin but left his entire estate to his other daughter who also had no relationship with him. Spence, a black man, had ended his relationship with Verolin after she announced she was pregnant with the child of a white man. She argued that her father’s motivations for leaving her out of the will were racist and as such, his estate should be divided evenly amongst his daughters.
While the Ontario Superior Court accepted Verolin’s arguments, the Court of Appeal reversed the ruling. The court ruled that even if Spence had been explicit in his racist reasoning for disinheriting his daughter (he had stated that they had no relationship), his will would still be valid.
Criminal Matters & Dependent Obligations
There are two important limits on testamentary freedom in Ontario estate law.
The first is where the provisions of a will provide a gift for reasons that contravene public policy. For example, if you left your assets to a person or group that would use them for explicitly criminal purposes. In that case, your will would likely be overturned.
The second limit has to do with dependents. If you have a legal obligation to support someone or have been supporting them such that they have become dependent on you, then that obligation extends to your estate. While adult and self-sufficient children are not automatically entitled to any of your assets, minors or others who have been financially dependent on you may have a claim if left out of a will.
Similarly, your spouse may also have a claim if left out of a will. While a will is a private document that you can alter without anyone else’s knowledge or consent, under the Family Law Act, your spouse is entitled to certain marital assets. If they challenged the will after being left out of it, the will would likely be overturned. However, such challenges must take place within six months of death.
When drafting a will or considering a legal challenge, it’s important to enlist the help of someone who understands your case. Blackburn has offered legal advice you can trust since 1975.
Contact our world-class estate litigation team for a free initial consultation today.
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
