Challenging a Will or an Estate – from the Perspective of a Spouse

challenging a will or an estate – from the perspective of a spouse

challenging a will or an estate – from the perspective of a spouse

My spouse has a Will, but what if I am not named as a beneficiary?

In the event you were unmarried, or in a common-law relationship, you might be entitled to dependant support. This type of claim is based on the deceased providing you with financial or moral support prior to their death.[1] More information about dependant relief can be found in our article called, “When A Common Law Spouse Dies Without A Will”.

In the event you were a legally married spouse[2], you have the right to “elect” to either (1) take entitlement under the Will, or (2) receive an equalization payment pursuant to the Family Law Act (“FLA”)[3], further explained below.

If you are married but have been separated for at least three years before death[4], or executed Separation Agreement, you are treated as if you were divorced and thus will not be entitled to any benefits under the deceased’s Will, even if you were named as a beneficiary.[5]

Equalization of Net Family Property

Provided the Will is valid, or you do not wish to challenge same, you may elect to receive equalization of net family property pursuant to subsection 5(2) of the FLA. You would have six months from the date of death to make such election[6], failing which you will be deemed to taken under the Will.[7]

The FLA sets out a regime for the division of property upon the breakdown of marriage, which is the same formula used in these circumstances. The said formula is designed to calculate the growth of each spouse’s net worth from the date of the marriage to the date of separation, referred to as the valuation date, and equalize the difference.

To determine the difference, each spouse calculates their net worth over the duration of the marriage wherein the increase or decrease is known as the “net family property”. Once a net family property value has been determined for each spouse, the spouse with the greater net family property pays the spouse with the lesser net family property an amount that is one-half the difference between their respective net family properties.

All property is to be included in the calculation for equalization regardless of its nature. In other words, not only does it include assets such the house, car, and joint bank accounts, but also business assets, interests in trusts, pensions, RRSPs. However, treatment of the matrimonial home at the date of marriage is unique in that its value is equalized without any credit to the spouse who brought the home into the marriage.

In determining your net family property, both you, as the surviving spouse, and the estate must each complete a Form 13.1: Financial Statement (Property and Support Claim) with any figures included therein supported by statements. The court expects and will require that you swear or affirm an oath that you have been fully transparent and have provided all financial assets you have, no matter how you obtained them.

Provided you are also a beneficiary of a life insurance policy, the beneficiary of a lump sum payment provided under a pension, the beneficiary of a registered investment account, or the recipient of joint property pursuant to the right of survivorship, these amounts (less any contingent tax liability) are to be credited against your entitlement to equalization.[8] In other words, you may need to deduct these amounts from any equalization payment owing to you from the estate, depending on how they are characterized.

At Hummingbird Lawyers LLP, we can assist you determine whether its worthwhile to make a spousal election for equalization.

challenging a will or an estate

My spouse does not have a Will. Am I entitled to anything?

When a spouse[9] dies intestate (without a Will), the surviving spouse may elect to (1) receive the entitlement under the law of intestacy, otherwise known in Ontario as Succession Law Reform Act (“SLRA”), or (2) receive the entitlement pursuant to the equalization process described above.[10]

Preferential and Distributive Share

Pursuant to section 46 of the SLRA, and in the event there is “no” Will, an estate would be divided between the surviving and the deceased’s the children, if any, following payment of a preferential share to the surviving spouse, set by regulation at $350,000.00.[11] Of course, prior to any distributions, liabilities would first have to be satisfied, i.e., funeral and burial costs, income tax, estate administration tax (probate fees).

After you receive the preferential share, the balance, if any, of the estate, would be split between you and the children of the deceased in accordance with the following rules:

  1. Where there is only one child, the balance is shared equally between the you and the child[12]; and
  2. Where there are two or more children, you take one-third of the balance, and the rest is divided equally among the children.[13]

It should be noted that if a child has predeceased their parent, the portion that would have gone to that child will not fail if that deceased child had children, i.e., grandchildren of the deceased party in question.[14] In this case, your share as the surviving spouse would remain the same as if the child had survived.

Keep in mind that the foregoing scheme for distribution may be possible even when there is a Will if it is later declared to be invalid. A Last Will and Testament may be challenged on the following bases:

  1. Absence of testamentary capacity or cognitive ability;
  2. Absence of approval or knowledge of the terms of the will;
  3. Undue influence or coercion;
  4. Forgery or fraud; and/or
  5. Non-compliance with the legislative requirements for executing a will.

Collectively, the above-noted grounds are known as the principle of “suspicious circumstances”.

When challenged, the propounder of the Will (the person relying on the Will) must prove that the testator (the person making the Will) possessed capacity and knew and approved of its contents. In such cases, the drafting solicitor’s file will be relevant as would the medical records belonging to the testator. Once satisfied the testator was of competent mind and had their Will read over to them, the circumstances point to a strong presumption that the Will has been duly, and properly executed.[15]

Conversely, when a Will is challenged based on undue influence or fraud, it is the attacker of the Will who bears the burden of proving it. This is an important distinction because where an attacker pleads undue influence and their case appears weak from the outset, the propounder of the Will is free to move summarily (without the need for a trial) to have the matter dismissed.[16] If successful, the attacker would be subject to costs, meaning they would have to pay the legal fees of the propounder in addition to their own.

More recently, the courts have refused to question the validity of a Will and order disclosure relating to an estate where the attacker does not meet a minimal evidentiary threshold to substantiate suspicious circumstances, whether lack of capacity or undue influence, thereby saving an estate from needless expense.[17]

My spouse does not have a Will. Can I apply as the executor to administer their estate?

When a person dies intestate, the administration, including distribution, of the estate is carried out by the person(s) appointed by the Ontario Superior Court of Justice as estate trustee(s).

There is an order of preference of those entitled to apply for a Certificate of Appointment of Estate Trustee (formerly referred to as Letters Probate)[18], which is as follows:

  1. Married spouse or the person with whom the deceased was living in a conjugal relationship outside marriage (including a same-sex partner) immediately before death;
  2. Children;
  3. Grandchildren; and
  4. Great-grandchildren.

Descendants are preferred over ascendants, including parents and siblings of the deceased, even when the latter are closer in relationship.

An estate trustee is generally charged with the following duties:

  • Determine the assets and liabilities in the estate;
  • Protect and preserve the assets;
  • Maintain trust accounts;
  • Ascertain, defend, settle, and/or pay debts;
  • Prepare an estate accounting;
  • Distribute assets to the beneficiaries; and
  • File income tax returns,

and is, accordingly, entitled to claim compensation for their work.[19] While the basis for taking an executor fee is legislated, the approach for calculating same is not and is to be determined on a case-by-case basis. An estate trustees’ compensation is typically 5% of the value of the estate and is subject to increase or decrease based on (1) the size of the trust, (2) the care and responsibility involved, (3) the time occupied in performing the duties, (4) the skill and ability displayed, and (5) the success resulting from the administration.[20]

Any compensation received by an estate trustee must be included as income within their personal income tax return.

Is there such a thing as partial intestacy?

It is possible for someone to die intestate in respect of a portion of their estate, in which case a partial intestacy arises.

When a spouse dies partially intestate, a surviving spouse may elect to take under the Will, and to receive the entitlement under the SLRA (preferential and distributive share) or under the equalization process.[21]

In these cases, a surviving spouse who elects to take under the Will and to receive the entitlement under the SLRA, shall also receive the other property to which they are entitled.[22] This means you would be entitled to keep any of the monies received pursuant to beneficiary designations.

The question then becomes whether there is any property within the estate that is not finally distributed under the terms of the Will. To put it differently, for you to claim the preferential share, there must be either a full intestacy (no Will or a court-declared invalid Will) or partial intestacy (the Will failed to properly distribute certain assets).

The case law reinforces a general presumption against intestacy, i.e., it presumes that a testator did not intend to die without a Will. That said, the jurisprudence always turns on its own particular facts and illustrates a balancing exercise between what is known as,

  • The “golden rule”, where courts attempt to avert intestacies as much as possible, and
  • The “armchair rule” where courts attempt to sit in the place of the testator when they cannot find the testator’s intention from the ordinary meaning of the words in the Will.

The courts have acknowledged that a lapsed gift passes on intestacy unless there is a contrary intention in the Will.

At Hummingbird Lawyers, we can assist you determine whether there is partial intestacy and/or lapsed gifts and what best to do.

Finally, in the event you are unable to avail yourself of any of the above grounds of relief, you may be entitled to enforce the equitable doctrines of unjust enrichment, constructive trust, or quantum meruit.

Get in touch with Estate Litigator, Alissa N. Winicki, today.

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    References and Footnotes

    1. Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA], s. 58. This claim should be initiated within six months from the grant of a Certificate of Appointment of Estate Trustee, s. 61(1).
    2. Family Law Act, R.S.O. 1990, c. F.3 [FLA], does not grant the right of election to a common-law spouse.
    3. FLA, s. 6(1).
    4. Provided the death occurred after December 31, 2021.
    5. SLRA, s. 17(4).
    6. FLA, s. 6(10).
    7. Or under the SLRA, as explained below. FLA, s. (11).
    8. FLA, ss. 6(6) and (7).
    9. Again, on intestacy, only the surviving spouse of a married couple is entitled to the preferential and distributive share; a common-law spouse has no statutory entitlement.
    10. FLA, s. 6(2).
    11. O. Reg. 54/95: General under Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1(b).
    12. SLRA, s. 46(1). Under the SLRA, the definition of “child” does not distinguish between biological and adopted children.
    13. Ibid, s. 46(2).
    14. Ibid, s. 46(3).
    15. Fulton v. Andrews (1875), L.R. 7 H.L. 448 (U.K. H.L.).
    16. Vout v. Hay, 1995 CarswellOnt 186, [1995] 2 S.C.R. 876 (S.C.C.) at para. 28; and Taylor-Reid v. Taylor, 2016 CarswellOnt 12013, 2016 ONSC 4751 (Ont. S.C.J.) at paras. 82-84.
    17. Johnson v. Johnson, 2021 CarswellOnt 13623, 2021 ONSC 6415, affirmed 2022 CarswellOnt 14167, 2022 ONCA 682 (Ont. C.A.).
    18. Estates Act, R.S.O. 1990, c. E.21, s. 29.
    19. Trustee Act, R.S.O. 1990, c. T.23.
    20. Toronto General Trusts Corp. v. Central Ontario Railway (1905), 6 O.WR. 350 (Ont. H.C.).
    21. FLA, s. 6(3).
    22. FLA, s. 6(4).

    Alissa is an Associate Lawyer with the Hummingbird Lawyers Wills & Estates practice group. For the past eight years, Alissa has been representing clients within a multitude of legal areas, including succession planning, estate administration and litigation, family law, and civil litigation. Having studied in England, where trust law originated, her practice streamlined naturally to estates where she has been specializing for the past several years.

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