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As people work their way through the ups and downs of life, it is common for people to have a need to revisit their wills to make sure they reflect how they would like their estate divided in the event of their death.  Of course, when a will is changed and it leaves someone out who was originally included as a beneficiary, this person (or groups of people) may turn to litigation as a path to a solution. This is what happened in a recent decision where the estranged wife of the testator made a claim for his property following his death.

Second wife is left out of will and does not receive property upon testator’s death

The main issue at trial was what should have happened to a valuable piece of property upon the death of the testator. The deceased acquired the property in 1988. He and his first wife owned the property as joint tenants. When she died in 1994, the deceased became the sole owner of the property.

The deceased married his second wife in 1995. Following his marriage he updated his will, stating that he wished for his estate to be divided into three equal parts for his son, his daughter, and the second wife.

However, the second marriage did not last long. In 1996 revoked all of his existing wills and left his entire estate to the son and daughter. He followed this up with a petition for divorce in 1996, but discontinued it a year later, citing a “reconciliation of the spouses.” But by 1998 the second wife had moved out of the property.

The deceased was diagnosed with pancreatic cancer sometime around 2010. His daughter became his primary caregiver. Four years later, the deceased added the son and daughter to the title on the property as joint tenants. He died a few months later. The second wife did not know he was sick, or that he died.

Property goes to testator’s children

Following the death of the testator, the property was transferred to the son and daughter. The daughter took out a mortgage and purchased the son’s share in the property, valued at $500,000. The daughter later sold the property for about $1.1 million. It was at this time that the second wife made a claim for interest in the property. She said that since she had been married to the deceased for close to twenty years, and that they had reconciled and were a couple again. Despite this, he had made inadequate provisions for her in his will. She said that the transfer of the property to the children created a resulting trust for her.

The court was not convinced with the second wife’s argument. It found that the second wife and the deceased had not lived together for more than eight years. Furthermore, she was not aware of the deceased’s illness or that he had died. The court found that “on a balance of probabilities that he and the (second wife) were estranged. I conclude that is a relevant factor in assessing the Deceased’s intentions at the time of the Transfer).” Simply put, he intended for the children to receive the property as a gift, which is exactly what he set out to do, and what he ultimately did.

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.

 

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.

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