Most people create wills in order to ensure that their estate is left to their loved ones. One of the dangers of not preparing a will as part of an estate plan is that failing to do so means that your estate may ultimately not go to the person or people that would have otherwise benefitted. It’s an unfortunate situation recently demonstrated in a decision from the Ontario Superior Court of Justice, in which two step-daughters of the deceased sought to be named as his beneficiaries after he died intestate.
Deceased passes away without a will
The deceased had not ever married or had children of his own. His parents were also deceased. However, he was in a common-law relationship with the mother of the applicants from 1982 until 1988. When he passed away in July 2020, the deceased had no will in place. The applicant applied to the court to seek an appointment as Estate Trustee and to dispense with the posting of a bond. She believed that she and her sister should be named as the beneficiaries of the estate of the deceased.
Applicant argues she and her sister were step-daughters of the deceased
The applicant’s position was provided in an affidavit, where she stated that her mother and the deceased lived in a common-law relationship between 1982 and 1988. During that time they and their mother lived with the deceased. The applicant stated they were treated as stepdaughters and remained close with him after he and their mother ended their relationship. In fact, the deceased had appointed the applicant as his attorney under a TD Bank Power of Attorney which he signed in July 2017.
Can the estate be given to the applicant and her sister?
The court recognized that the deceased had a close relationship with the applicant and her sister, but found that they do not fall within any class of person recognized as an heir on an intestacy pursuant to the Succession Law Reform Act.
The court did open up a possible path to resolution, stating that an investigation by the Public Guardian and Trustee can be applied for. However, the court cautioned that it is unlikely that such an order could be made in the circumstances before it without imposing terms, including the posting of security. As part of this process, the PGT would launch an investigation to search for next of kin. The PGT could then provide a letter to the courts supporting the applicant and her sister as being named beneficiaries.
If you have been appointed an executor, the estates lawyers at Derfel Estate Law can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 416-847-3580 or contact us online to schedule a consultation.