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.