Category: WILL CHALLENGES

It’s not uncommon for someone to want to revisit their will after some time has passed. Perhaps they have a new husband or wife and want to leave something for their new partner. Maybe they’ve started a business that was not considered in an earlier will. Or they could have come into some money and are seeking to ensure it is distributed according to their wishes. Typically, when you work with a lawyer to draft a new will, you would expressly note that any previous wills have been revoked. But what happens when that step is overlooked? This was the question addressed in a recent decision from the Alberta Court of Queen’s Bench, which stands in contrast with Ontario common law.

A family divided

The issue arose after the sons and daughters of a deceased man (“the deceased”) were unable to agree on which of his testamentary documents should have been considered his last will. The wills were dated March 6, 2011, November 1, 2016, and May 14, 2017. The 2016 and 2017 wills were able to be read together and were considered by the court to be the “2017 will.”

The wills were written by the deceased and their authenticity was not in question. However, neither will revoked previous ones nor did they include language such as “my last will” or “my final will.”

The 2011 will left $85,000 to each of the deceased’s daughters and $25,000 if it remains to one of his sons. That son as well as two others were also required to pay the estate back for money they owed to the deceased. The 2017 will left $100,000 to each daughter, but has much lower debts listed for the sons. Some of the other gifts to be left to the sons were also left out of the 2017 will.

The positions of the parties

The sons argued that the 2017 will and the 2011 will can be read together as one testamentary document. They presented some evidence to support this, including stating they found the wills laying together after the deceased passed away. The daughters argued that the 2017 will should have replaced the 2011 will.

The court referenced a 2009 decision which addressed implied revocation in cases where express revocation has not been made.

“In my view implied revocation, like express revocation, derives from the intention of the testator, and therefore it is possible that even when a second will does not dispose of all of a testator’s property, the testator’s intention to revoke an earlier will in its entirety may still be inferred. The presumption against intestacy is only a presumption. It is defeated where by the terms of a later will it is clear that the testator intended to revoke a prior will. Generally, in the absence of an express revocation clause, an earlier will is revoked only to the extent that it is inconsistent with a second will. However, where a subsequent will disposes of, or shows an intention to dispose of, all the testator’s property, the Court may infer that the testator has impliedly revoked the whole of the first will. (emphasis added)”

Applying this ruling to the facts at hand, the court found,

“there is more than enough evidence before me to decide the matter without a trial – I find as a fact that the 2017 will disposes of all of the testator’s property. There is no evidence of estate assets left out of the distribution scheme of the 2017 will.”

In Ontario, the revocation of a will must be done in accordance with the Succession Law Reform Act, which says a will is revoked only by marriage, another will, a written declaration of a will to be revoked, or the destruction of the previous will. It will be interesting to see whether the developments of this law in Alberta will reach Ontario.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

When drafting a will, one of the goals is to make the will as clear and concise as possible, leaving little room for interpretation outside of the testator’s wishes. But as we’ve seen with many of the situations we’ve discussed, despite a testator’s best intentions, the language of a will can always be subject to debate. A recent decision from the Ontario Superior Court of Justice looks a case where the court had to address such a situation.

The will and the property

The will in question was written by the husband in a relationship and was dated March 17, 1999. He passed away in 2002 and was survived by his wife. Prior to November 1999, the husband and wife lived together in a property they owned as tenants in common. However, in November 1999 the husband moved into a long-term care facility where he lived until he passed away on December 30, 2002.

Even after the husband’s move out of the matrimonial home the couple remained husband and wife. In February 2000, the wife sold the home and put a deposit on a “life lease” with her and the husband named as tenants in common. Of course, the husband didn’t ever actually live in the new home.

The wife sold the life lease in 2007, at which time she deposited 50% of the proceeds into the husband’s estate.

The court was asked to interpret a few sections of the husband’s will, notably the following:

3(h) To allow my wife, during her lifetime, the use and enjoyment of whatever interest I may own in any residence we may occupy at the time of my death. My Trustee may, at any time, with the consent of my wife, sell such interest with the proceeds of such sale assist in the purchase of another residence for the use and enjoyment of my wife as aforesaid and so on from time to time, always retaining the proportionate share in such residence for my estate. If my wife so prefers, my Trustee may sell such interest in the residence and hold the net proceeds of sale in trust for my wife as hereinafter set out. If, during any period, the whole or any part of the proceeds of any such sale be not so used, they shall be invested by my Trustee and my wife shall, during such period, be entitled to the net income therefrom. My Trustee in determining the proceeds of sale of any such interest in the residence with a view to providing another interest in the residence for my wife as aforesaid, shall not deduct the amount of any debts secured thereon.

All taxes, insurance, mortgage interest, repairs and any charges or amounts necessary for the general upkeep of such residence shall be paid by my wife so long as she shall continue to have the use and enjoyment of such residence.

On the death of my wife, any interest in such residence then held for the use and enjoyment of my wife as herein provided and/or any fund then held by my Trustee representing the sale of any interest in such residence shall be added to the residue of my estate to be dealt with as part thereof.

The question was whether the property with the life lease applied to paragraph 3(h), specifically in respect to the husband’s interest in “any residence we may occupy at the time of my death.” The husband owned the life lease with the wife, but he didn’t ever live there.

Following that, the if the answer was “yes” the court would have to determine if the wife was entitled to the net income earned on the proceeds of the sale of the home which were not used for the purchase of the second.

If the answer was “no” the court would have to ask whether any of the net income which would have been earned by the estate on the sale of the home should have been turned over to the estate (as per another section of the will).

The armchair rule

In determining whether the clause would apply to the life lease, the court adopted the “armchair rule” in which the court “sits in the place of the testator and assumes the same knowledge he had to the nature and extent of his assets, the makeup of his family, and his relationship to its members.”

The court accepted that the will was drafted while the couple were married, with the only reason they weren’t living together being his medical condition. The court also accepted that the husband’s primary concern with the will was that his wife was looked after financially in the event of his death. The court wrote, “He clearly wanted his wife to be able to remain living in whatever home she and he, but for his medical condition, would have been living in at the time of his death.”

The court then determined the wife was entitled to the net income earned on the proceeds of the matrimonial home in order to purchase the life lease.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

In last week’s blog we wrote about a business owner whose will provided for an employee to be able to purchase his business rather than leaving it to his family. In this week’s blog we cover a similar situation with a critical wrinkle. In this situation, the deceased left his business to his brother rather than his wife and children.  The court arrived at a similar position as in last week’s blog, but this week’s case has some wrinkles that make it worth covering on its own.

The will

The deceased was the owner, and sole shareholder of a construction company (“the business”). The deceased’s will provided that in the event of his death, the business as well as its land and assets were to be left to his brother rather than his wife and children.

During the original trial, the court referred to section s.5(2) of the Ontario Family Law Act, explaining “that when a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them.” Meanwhile section 6(1) of the Act sates that if the deceased has a will, the reviving spouse “shall elect to take under the will or to receive the entitlement under s. 5.”

Sole shareholder

It was the wife and children’s argument that their father did not own the assets given to his brother, rather the business did. The deceased was simply a shareholder of the business. The court summarized the family’s argument as follows,

“(The mother and children) assert that these gifts are invalid because a shareholder of a corporation owns only the shares of that corporation (which the shareholder can bequeath), but does not own the corporation’s assets (which the shareholder cannot bequeath). They claim that upholding these gifts would involve disregarding the separate corporate personality of (the business), and that because these gifts are invalid, they fall into the residue of the estate.”

The court agreed with the application judge’s finding that “the testator has made provision for all of the assets of (the business), not merely the assets to go to (the brother). In my view, this indicates that the testator effectively turned his mind to, and directed, a winding-up of (the business) and an in specie distribution of the assets.”

The court’s finding is backed up by the province’s Business Corporations Act which allowed the deceased to wind up and distribute the corporate assets as he saw fit. In essence, while the deceased did not have the power to give away the business’ assets, he did have the authority to instruct the business to do so.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

WHEN BENEFICIARIES AND BUSINESS SUCCESSORS COLLIDE

When a business owner makes plans for their estate, the family of the business owner might find themselves not a part of the owner’s plan for the succession of the business. While this might be well and good, it might also lead to disputes about how the business is treated and how the estate benefits from what happens to it. A great example of this type of situation can be found in a recent decision from the Court of Appeal for Ontario.

The Will

The deceased owned an auto supply company (“the business”). In his Will, he included a provision granting a long-term employee the option to purchase the business. The provision allowed the employee to exercise the option to purchase the business for the lesser of $1.75 million of “the price determined by multiplying the earnings of (the business) (averaged over the last three fiscal periods) by a factor of 5.5.” The Will also provided that the purchase price be delivered by way of a promissory note, with interest payable at 5% per annum. The employee would then be required to make a gross annual payment to the estate of not less than $180,000 to be made in monthly payments. The employee was also required to secure the promissory note with a general security against the company’s assets as well as through the registration of a collateral mortgage against the employee’s home.

Purchasing the Business

The employee attempted to exercise his option to purchase the business, but was unable to reach an agreement with the estate. An application judge ended up providing directions, setting the price at $529,611, which included a discount following what the judge determined to be an improper payment of $187,310 from the company to the deceased’s widow. The judge also determined that the employee was not obligated to provide a collateral mortgage.

The Appeal

The estate appealed the judge’s decision on the grounds that:

• the judge treated the respondent as a beneficiary instead of a favoured purchaser;
• the judge dispensed with the requirement of a collateral mortgage;
• the judge accepted the respondent’s evidence regarding the amount to be credited for (the deceased’s) salary for the purposes of calculating earnings; and
• the judge deducted from the purchase price monies paid out of the company to the estate.

The Appeals Court did not side with the estate on any of the grounds of appeal. It determined the judge made no suggestion that the employee was a beneficiary rather than a favoured purchaser. The Court found that since the employee did not own a home, and the Will was vague when describing this condition, there was no other direction available. The Court also agreed with the judge’s determination on the issues of salary and inappropriate payments to the deceased’s widow.

If you are considering filing an application to challenge a Will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

The use of multiple wills for estate planning purposes is a strategy that many have used to allow some assets to pass to family members of loved ones quickly while the remainder of the estate gets settled. The use of primary and secondary wills has recently been the subject of controversy as it worked its way through the courts, eventually landing before the Ontario Superior Court of Justice.

The wills

The case originated with a married couple who died on the same day in October 2017. Each of them had left both primary and secondary wills behind. The wills named their daughter, accountant, and lawyer as the executors.

Each primary and secondary will as essentially the same. The primary wills were designed to deal with the distribution of all property except, “any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.”

The secondary wills covered items explicitly excluded from the primary wills as well as “any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.”

When the wills were submitted for a Certificate of Appointment the application judge had a problem with the executors being able to determine which property would be covered by each will. This discretion left too much ambiguity behind because with few exceptions, the secondary will did not include specific assets. The application judge wrote, “ “A will is a form of trust. In order to be valid, a will must create a valid trust and must satisfy the formal requirements of the Succession Law Reform Act (“SLRA”). He further set out thata valid trust, and therefore a will, must demonstrate “certainty of intent to create the trust, certainty as to the subject-matter or property committed to the trust, and certainty as to the objects of the trust or the purposes” (i.e., the “three certainties”).

The application judge also wrote,

“The Secondary Will of each testator vests in the executors all property of the testator and therefore satisfies the requirement of certainty of subject-matter. No property of the testator of any kind is excluded from the trust created by the Secondary Will even though it provides that it does not revoke the primary will. The Primary Will, by contrast, effectively vests in the executors the entire discretion to determine retroactively whether any assets were vested under the will at death based upon the executors’ view as to whether probate is necessary or desirable.”

As a result, the judge found the secondary wills to be valid, but the primary wills to be invalid.

At appeal

The court was tasked with determining whether the application judge erred in stating that a will is a trust. The court also had to determine whether the application judge was correct in holding that the “three certainties” are what should be used to determine the validity of a will.

Common law in Ontario has long held that multiple wills are valid, explaining that they are often used to allow the estate to pay less tax. The court wrote,

“Because a testator often executes their Last Will and Testament several years in advance of death, it is often not practical to provide a definitive list of assets which will require or do not require a Certificate of Appointment to be transferred or realized at the time the Primary and Secondary Wills are executed. To overcome this practical problem, estate planning lawyers often provide estate trustees with the power to determine whether a particular asset requires a Certificate of Appointment upon administering the will. These clauses are often referred to as allocation clauses. The use of allocation clauses is a common estate planning technique.”

The court added that just because the executors in this case had the discretion to allocate assets under each will, it did not follow that they could exercise that discretion in an arbitrary fashion.

The court did not agree with the application judge’s statement that a will is a trust and is therefore subject to the three uncertainties. However, even if a will is a trust, the primary will should have been determined as valid. The court’s decision stated,

“The property in the Primary Wills can be clearly identified because there is an objective basis to ascertain it; namely whether a grant of authority by a court of competent jurisdiction is required for transfer or realization of the property.  As a result, the Executors can allocate all the deceased person’s property between the Primary and Secondary Wills on an objective basis.”

As a result the primary and secondary wills were both held as valid.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

When lawyers talk about the importance of creating an estate plan, it’s usually in regards to taking steps to ensure your family is not confused or litigious about your wishes when it comes to your assets. But of course, our lives involve many people outside of family, and estate disputes can also lead to conflict in those areas. This was the case in a recent decision issued by the Court of Appeal for Ontario.

The business venture

The deceased and the plaintiff operated a jewelry store together starting in July 2014. As part of their business arrangement, they each took out a life insurance policy on the other’s life, with the company as the party responsible for paying the premium. In this case, the deceased’s life was insured for $250,000, naming the plaintiff as the sole beneficiary.

The deceased passed away in November 2015, a little more than year after starting the business.

A dispute emerges

The deceased’s wife was named the trustee of the estate. Both her and the plaintiff agreed to place the proceeds from the insurance policy in an escrow account. However, the plaintiff soon commenced an action seeking relief against the estate. In addition to seeking the proceeds of the insurance policy, the plaintiff also sought judgment on a $42,000 promissory note that he said the deceased executed in respect of a balance owed for shares of the company. The plaintiff explained that the money owed was the result of an error made in the purchase of shares, where the plaintiff received less than what was originally intended.

The estate’s position was that the plaintiff would be unjustly enriched if he were to receive the insurance proceeds, stating there was an agreement made between the deceased and the plaintiff that any insurance payouts were to go to the estate of the shareholder who died rather than the other shareholder. It was their position that the plaintiff be required to purchase the deceased’s shares for $250,000.

Summary judgment and appeal

During the original hearing, a motions judge sided with the plaintiff in regards to the insurance payout. However, a trial was ordered for the issue of the promissory note.

The estate of the deceased appealed this ruling, arguing the motion judge erred in ruling in favour of the plaintiff.

The court heard the estate’s argument that a buy/sell agreement had been put into place, but without any evidence of such an agreement, the court was unable to enforce such an order. The court wrote, “The onus lay on the appellants to demonstrate the existence of some circumstance that justified departing from the clear beneficiary designation in the Policy. They were required to put their “best foot forward” on that issue.” Having failed to do so, the court sided with the plaintiff on this matter.

The court also agreed with the motion judge’s decision to send the promissory note matter to trial, though urging the parties to resolve the matter out of court in order to avoid spending more on litigation than the note is worth.

Derfel Estate Law is a boutique estate litigation law firm. Our practice focuses on all aspects of estate disputes, as well as estate administration and probate. We act for beneficiaries, guardians, executors, trustees, and others. Our estate lawyers can help with a wide range of estate litigation matters, including:

Estate planning is a crucial step to ensuring that your loved ones are looked after in the event of your death. By signing a valid will, you’re able to dictate what you want to happen to your possessions, including how they are to be distributed. However, as we all know, life has a way of throwing curve balls at us, presenting people with situations that may not have been considered by even the most thoughtful planner. A recent case heard by the Ontario Superior Court of Justice looks at a situation where the widow of a deceased man needed assistance for reasons not considered in her husband’s estate plan.

The parties involved

The widow was an 89-year old woman who had been married to the deceased for 18 years before he passed away in 2004. The deceased made a will on April 28, 1995, which named the widow as his estate trustee. The will stated that as long as the widow lived, she was entitled to continue to live in the couple’s marital home until her death. She would also be able to sell the home, the only real asset of the estate, and use the proceeds to purchase another residence which she could use until her death. The deceased’s son from a previous relationship was the residual beneficiary of the estate and was responsible for paying the taxes, repairs, mortgage, and any other charges or amounts needed to maintain the upkeep of the residence. The son was named a join-owner of a $300,000 GIC, with right of survivorship. The son had the GIC passed to him upon the death of his father.

Things go ok until they don’t

Following the death of her husband, the widow continued to live in the residence with the son paying most of the expenses. The GIC, which had been intended to cover the cost of maintaining and paying for the home, had become depleted by 2019 according to the son.

After a number of years, the widow’s health began to fail. Her physician confirmed that she was no longer able to live independently. As the estate trustee, she sold the home and moved into an assisted living facility. However, her own resources were insufficient to cover the cost of living there. She sold the home and applied to the court to use some of the $857,000 generated from the sale to provide her with dependent support, as well as interim support in the meantime.

The son objects

The son, who was the residual beneficiary of the estate, opposed the widow’s application for dependent support as well as her motion for interim support. He referenced a marriage contract signed by the widow and his father in 1986, in which the widow waived any entitlement to support. In the alternative, he requested that the entirety of the widow’s income ($1,966 per month) be used towards the cost of living in the facility before dipping into the money left in the estate.

The widow’s argument was that as her spouse, the deceased was required to provide for her to the extent he is able to, including through using the money left in the estate. She asserted that her request was in line with what the deceased wanted to happen upon his death.

A full hearing is needed

The court found that a full hearing would be needed to determine if the marriage contract voids the widow’s ability to use the proceeds from the sale of the home to support herself. However, in the meantime, the court did allow an order for interim support. The court did not agree that the widow would have to use all of her money before dipping into the money left in the estate, instead allowing the estate to pay for all associated costs.

If you are considering filing an application to challenge a will, contact the estate lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

One of the most important reasons to have a will in place is to ensure that your estate is distributed according to your wishes, especially if those wishes are contrary to what would happen if you were to die intestate (without a will). Most people would hope that a will would serve to minimize conflict in the event of your death, but as we saw in a recent decision from the Court of Appeal for Ontario, a will is not a guaranteed way to avoid litigation, especially if the will leaves some people out of an inheritance all together. The case is also a reminder about the impact of costs involved with will challenges.

Upset siblings

The deceased passed away on April 29, 2009. He had three children (two sons and a daughter). His wife had predeceased him, having died in 2005. The deceased’s will stipulated that the entire estate should be left to his daughter. However previous wills had distributed his estate among his three children as well as his grandchildren.

The male children of the deceased commenced an action against their sister in August 2011 seeking to set aside the most recent will (the “2006 will”), a declaration that part of the sister’s home was held in trust for the estate, an accounting of the assets of the estate, and damage against the sister for conversion of estate property and breach of fiduciary duty.

A problem with limitation periods

The sons of the deceased were unsuccessful at trial. The judge dismissed all of the claims against the male children, stating they were statue-barred by the Limitations Act, 2002. The trial judge admitted that the male children had shown there to have been suspicious circumstances in relation to the execution of the 2006 will, the daughter had discharged her onus to prove testamentary capacity. The trial judge found the sons to have failed to show undue influence. Ultimately, the trial judge refused to even consider the brothers’ arguments about the validity of the will since their claims were statue-barred.

On appeal

The male children appealed the trial judge’s decision, but were not successful. However, the daughter also appealed the trial judge’s cost decision, which saw her awarded no costs.

The trial judge provided two reasons to not award costs. The first was that the male children had established “suspicious circumstances” surrounding the will, but that they were statute-barred from those circumstances changing anything. Secondly, he indicated that the daughter’s “misleading evidence” about her father’s mental state was an attempt to mislead the court and could not be condoned.

The court did not entirely buy the trial judge’s reasoning that the only reason the daughter was successful was because of the limitation period, writing “The trial judge accepted that (the male children) had shown suspicious circumstances in respect of the 2006 will. However, he went on to find that (the daughter) had rebutted those suspicious circumstances and demonstrated her father’s testamentary capacity. The trial judge made strong findings of fact in favour of (the daughter) on both the testamentary capacity and the undue influence issues.”

The court also found that the daughter’s evidence “had no effect on either the length of the trial, or the conduct of the trial. Her misleading evidence also had no impact on the trial judge’s findings.”

The court allowed the daughter’s appeal, awarding her $10,000 in costs.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

There are a number of reasons why it’s important to have a will in place. Dying without a will, something called “intestate”, means you don’t have any control over what happens to your assets upon your death. Instead, your assets are distributed according to statute. A recent decision from the Ontario Superior Court of Justice highlights some of the complications this might introduce.

A common law dependent

The deceased lived with his partner for 26 years before he died without a will at 82-years-old. Since he had no will, his daughter was set to inherit his entire estate, valued at ,851,125.77. However, the deceased’s partner brought a claim seeking dependent support. Specifically, she sought one half of the estate, which equaled about $1.4 million.

The daughter opposed this claim. The issue before the court was whether the partner was eligible for support from the estate after taking into account transfers given to her from the deceased’s accounts as well as investments to herself while acting as his Power of Attorney.

What does the law say?

In Ontario, when someone dies without making adequate support provisions for a dependent, the court can impose relief if it considers it appropriate to do so. The right of the courts to do this comes from section 58 of the Succession Law Reform Act. The Act also stipulates that the court must not only consider the economic needs of the dependent, but also the moral or ethical obligations of the deceased to their dependents.

The relationship between the deceased and his partner was a matter of contention. The daughter said the partner was first hired to provide help to her father. Meanwhile, the partner said they met through a dating service. The court believed the daughter, but found that ultimately the relationship developed into a romantic one and the two became common law spouses of each other.

The partner, who was 73-years-old at the time of the hearing had not worked outside of the farm they lived on since 1991. While the daughter disagreed with the partner’s claim that her work on the farm contributed to her value, the court found that the partner’s work did increase the value of the farm.

The court also noted that the partner had received approximately $570,455 from the estate through her role as Power of Attorney. The daughter was critical of this, also accusing the partner of refusing to provide a phone number for the daughter to reach her father while he was hospitalized as well as isolating the deceased from the daughter during the last days of his life.

The court was critical of the partner’s conduct, but added “Ultimately, I am not persuaded that (the partner’s) actions were egregious or malicious, nor do I find her actions to have been so unconscionable as to constitute an obvious and gross repudiation of the relationship.” The court also noted that her conduct doesn’t carry as much weight as it may have if they had not been in a common law relationship.

The court allowed the partner to keep the assets she already had control of, including full ownership of the matrimonial home, as well as an additional $275,107.

If you are the friend or family member of a testator and are concerned about the appointed trustee or executor, contact Derfel Estate Law. Our Toronto estates lawyers help clients ensure that their interests or the interests of their loved ones are protected, and decisions are being made in the best interests of the estate. Call us at 416-847-3580 or contact us online to schedule a consultation.

There are a number of factors that could determine whether or not a couple decides to get married. Many people remain in long committed relationships that resemble marriage in everything but name. While many of the rights associated with marriage also apply to people in common-law relationships, there are some exceptions or difficulties that may arise. Take for example a situation recently heard by the Court of Appeal for Ontario where a surviving member of a relationship had to try to prove to the courts that there was a relationship when her partner left her out of his will.

Great affection does not equal a committed relationship

The original trial was heard by a motion judge, who asked the question, “Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?  In my view the answer is that she cannot.”

The situation arose after a mother and daughter, who claimed the mother had been in a romantic relationship with the deceased, found themselves left out of his will. The mother claimed her and the deceased had been in a committed relationship from the summer of 2009 through to his death on December 31, 2016. However, the will, dated May 9, 2012, made no mention of her.

When the mother found out her and her daughter were not in the will, they brought a motion to challenge it. However, the motion judge did not find that the relationship described by the mother was enough to establish a committed relationship, writing,

“There is no corroborated evidence that (the deceased) demonstrated a settled intention to treat (the mother) as a member of his family.  While he clearly had great affection for her and demonstrated a level of generosity towards her, he was generous with others and Andreja was never introduced to any of (the deceased’s) own family (including his children), let alone introduced as a daughter of his family.”

The motion judge looked at the lifestyle of the deceased and determined he was a “charming” and “charismatic” individual, noting that he had developed close relationships with several women over the years, with some of them being sexual and some not.

The appeal

The mother and daughter appealed the motion judge’s decision, arguing he placed too much emphasis on the fact that the mother did not live with the deceased. While the court agreed that a great deal of emphasis was placed on that factor, it wasn’t the only consideration taken into account. The court wrote,

“(The motion judge) also took into account other factors. He looked at the factor of fidelity in the relationship, the financial arrangements, the overall nature of the relationship, and their alleged common life together. In addition, he found there were clear breaks in the relationship on two different occasions. He supported his findings with careful reference to the evidence.”

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.