Our Lawyers
What We Do
Blog
Contact

If we had to pick just one reason to take steps to properly plan for the administration of your estate in the event of your death, we may very well say that doing so, including the creation of a valid will, is the best way to ensure that your estate is handled in a way that you want. In addition, doing so can help prevent your desired beneficiaries from having to spend time and money litigating how your estate is handled. This lesson is demonstrated clearly in a recent decision from the  Ontario Superior Court of Justice. This case is interesting in that it differentiates itself from some of the other cases we have discussed where someone dies intestate (without a will) in that the deceased’s child was estranged from him, leaving the deceased’s common-law spouse and the child at odds over who should be the estate’s beneficiary.

Common-law spouse and son both claim beneficiary status

The deceased passed away on April 2, 2019, without a will. At the time of his death, he was involved in a common-law relationship with “the wife” who claimed that as his common-law partner, she was entitled to receive a Certificate of Appointment as estate trustee. She also intended to advance a claim for relief as the deceased’s dependent under Ontario’s Succession Law Reform Act.

However, the deceased also had a child (“the son”). While the son was the biological child of the deceased, the two did not have a relationship, as the son became a Crown Ward when he was a child, meaning he was placed in the care of the province, but not adopted.

The son responded to the wife’s application by stating that he is the sole beneficiary of the estate and sought to be named as the estate’s trustee.

Does Crown Wardship status disqualify the son?

The court stated that the issue of whether the son’s status as a Crown Ward disentitled him to an interest in the deceased’s estate as a beneficiary would have to be determined at a later time.

However, the court did say that case law provided by the son seems to conclude that Crown Wardship orders to not terminate a parental relationship. This is unlike adoption, which does formally terminate a parent-child relationship.

The wife took the position that despite Crown Wardship not automatically terminating the son’s ability to claim beneficiary status, his estrangement from the father should do so.

In siding with the son on this matter, the court cited case law stating that the estrangement of a sole surviving child from the deceased is not relevant in determining whether the child can be named as a beneficiary of the estate.

Who should act as estate administrator in the meantime?

Before the court determined who would ultimately become the estate’s beneficiary, it had to appoint an Estate Trustee During Litigation (ETDL). The problem was that the two parties involved in the litigation were the only two people who stood to be named beneficiaries and therefore had inherent conflicts of interest as estate trustees.

Because of this, the court stated that a third-party must be named ETDL and it tasked the parties to come to an agreement on who that person should be.

In the meantime, the son was named as the Litigation Administrator of the Estate, and the wife was told to institute proceedings against him in that capacity.

We will be sure to follow this case and provide our readers with an update on how it is handled down the road.

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.

 

 

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.

LOCATION

95 Barber Greene Road, Suite 300
Toronto, Ontario,
M3C 3E9