Legal advice is a must for testators with complex family dynamics.
Second (or third) marriages, stepfamilies and common-law relationships are no longer the novelty they once were in Canada.
And while our society is far more relaxed about blended family arrangements, it’s still a challenge for matriarchs or patriarchs to ensure that all of their loved ones will be protected after they’re gone.
That’s especially true when there is tension between the different branches of the family, as a recent court case involving the common-law spouse of a deceased Peterborough woman and her children from an earlier relationship demonstrates.
According to the decision, the woman’s common-law partner lived in her house for 24 years before her death in March 2020 and she left a will that provided for him to stay there until his own death. Only then would it be sold and divided between her four adult children.
In the following years, the property’s title transferred to the woman’s children and her former partner began paying her estate rent – albeit under protest – while one of her children also moved into the house and began paying the estate rent.
Problems escalated when the deceased’s common-law partner asked the estate to evict the son because he was being disruptive, prompting the launch of his court application.
The judge in the case eventually sided with the common-law partner, finding that he had been granted a “life interest” in the property, including a right of exclusive possession that allowed him to decide whether (and to whom) to rent parts of the property out. The ruling also clarified that the partner was responsible for day-to-day expenses related to the home, while the estate takes care of insurance and capital improvements.
In this case, the will was drafted by the deceased herself using a homemade will kit. These documents are a recipe for problems in even the simplest of estates cases, let alone one that features the complications and competing interests that come with a blended family and a common-law spouse.
An experienced trusts and estates lawyer can help testators ensure the language of the will accurately reflects their wishes regarding gifts, guardianship, funeral preferences and much more, all while minimizing the tax burden on the estate.
Apart from the future occupation of the family home, there are plenty of other estate planning pitfalls for common-law couples with blended family arrangements.
Another issue that frequently ends up in court is when a common-law spouse failed to account for a surviving partner at all in their will. Under Ontario’s Succession Law Reform Act, dependants of the deceased are allowed to make a claim against the estate if they were inadequately provided for in the will.
Conversely, a person who leaves everything to a new spouse – omitting all others – risks exposing their will to a challenge from disgruntled family members who should have been accounted for.
Depending on the circumstances, a testator’s depandants may or may not include their first or second spouse, children from different relationships, or even their new partner’s children from a previous relationship.
Courts have broad discretion, and have forced the redistribution of life insurance proceeds from their original beneficiary designations and undone property conveyances to satisfy claims for dependant’s relief.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
