|Sursa dumneavoastra de Estates si Real Estate Law - Who can challenge a will or bring a claim against and estate and why ?|
WHO CAN CHALLENGE A WILL OR BRING A CLAIM AGAINST AND ESTATE AND WHY?
Testamentary freedom is something that is highly regarded in our legal system and the courts do not easily set aside a will. This is based on the principle that one can do whatever they want with their money, including distribute it unequally to their heirs, or exclude a relative out of their will.
A will is not invalid just because it is unfair. The grounds on which a will can be challenged are: lack of testamentary capacity and improper execution (meaning it was not signed according to the law). However, currently, the law in Ontario allows anybody with a financial interest in the estate to ask the court to verify that the will is valid.
To make matters a bit more interesting, even when these two conditions are met, and the will is valid, there can still be lawful court claims which can set the will aside. A dependant or a legally married spouse can make a claim to have the will set aside.
Firstly, the dependant must be a spouse, parent, child, or sibling of the deceased, and also someone to “whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” The definition for each is not as straight forward as one might think:
• “Spouse,” for instance, includes a former spouse, a same-sex spouse, and a common-law spouse with whom the deceased was cohabiting continuously for a period of not less than three years or with whom the deceased was in a relationship of some permanence if they had or adopted a child together
• “Child” includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child
A depedant claim could result in a court order for dependant support and the court may order that the estate make periodic or lump-sum payments or transfer/assign any property of the deceased.
Secondly, a surviving married spouse can also bring a claim against an estate if they feel they were not adequately provided for in the will. The law allows the surviving spouse to either accept what he or she has been provided under the will, or to elect an equalization claim under the Family Law Act (“FLA”). “Equalization” is the division of the net family property following the breakdown of a marriage either by death or separation. Particularly, when a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them.
If the spouse elects to take under the will, he or she will receive the benefits under the will and
all insurance proceeds from policies on the deceased’s life naming the surviving spouse as beneficiary, as well as any death or survivorship benefits under pension plans or similar plans in which the surviving spouse is so named. Furthermore, the right of survivorship associated with any property jointly owned by the spouses will be operative in the normal manner.
If the spouse wishes to elect under the FLA, this will result in the following:
• The surviving spouse loses all the entitlement under the will
• Any lump sum payments resulting from insurance, pension, or similar plan benefits and other entitlements which name the surviving spouse as the beneficiary will now have to be included in the calculation of equalization
• The will is to be interpretated as if the surviving spouse had predeceased the testator
• The surviving spouse’s appointment as executor in the will is revoked
Will challenges in Ontario are possible but not easy to succeed and the challenger must prove that the challenge is valid. Dependent support claims, on the other hand, are different from will challenges, and are easier to pursue. Someone who was financially dependent on the deceased or a legally married spouse who wishes to claim equalization should make their claim within six months of death of the deceased spouse.
PLEASE NOTE THAT THE CONTENT OF THIS BLOG IS MERELY FOR INFORMATION PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE.
Raluca M. Soica, BBA, CPA, CMA, JD
Barrister & Solicitor
Raluca M. Soica 1/10/2021