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.