Category: Hull on Estate and Succession Planning
Common Law Spouses in Ontario and Intestacy
In my previous blog on the benefits of estate planning for millennials, I canvassed some of the ways in which today’s young adult generation differs from the young adults of generations past. One such difference is the increased prevalence of common law relationships in today’s millennial cohort. In a wide-ranging public opinion poll conducted in 2018 by the Angus Reid Institute, 53% of Canadian adults expressed feeling that marriage is “simply not necessary.” This attitude is reflected in rising rates of common law marriage in Canada: as Global News reports, while only 6.3% of Canadians were in common law relationships in 1981, this figure jumped to 21.1% by 2016.
While common law couples may feel no emotional difference from any formally married couple, there are significant differences between some of the legal rights that common law and married couples enjoy. In the estates context in Ontario, for example, common law spouses are treated differently than married spouses when one spouse dies without a Last Will – also known as dying “intestate”. This blog summarizes the relevant law and difference in treatment, below.
Common Law Spouses Have No Entitlement on Intestacy
In Ontario, Part II of the Succession Law Reform Act RSO 1990, c S 26 (the “SLRA”) governs how one’s assets will be divided if a person dies intestate.
Pursuant to sections 44 and 45 of the SLRA, when a person dies intestate and leaves behind a surviving spouse and no children (or “issue”), the surviving spouse will be entitled to the entirety of the deceased’s estate.
If the deceased leaves behind a surviving spouse and any children, the surviving spouse will get the first $200,000.00 of the estate (being the current SLRA “preferential share” value). If there is one child, the remainder of any residue is divided equally between the surviving spouse and child. If there is more than one child, the spouse will receive a third of the balance of any residue, while the remaining children will share the other two-thirds equally.
If the estate’s net value after debts, funeral and administration expenses is less than the present SLRA’s “preferential share” value, the surviving spouse is wholly entitled to the deceased spouse’s estate, irrespective of whether there are any surviving children.
Notably, however, the definition of “spouse” in this section does not encompass couples who are not formally married. For the purposes of intestacy, the SLRA adopts the definition of spouse found in section 1 of the Family Law Act, RSO 1990, c F 3, which reads:
“spouse” means either of two persons who:
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)
As such, only married spouses are entitled to benefit under the intestacy regime. While a common law spouse may potentially seek redress by making a dependant’s support claim against their deceased spouse’s estate, for example, they are not entitled to a share of their deceased partner’s estate pursuant to the laws of intestacy.
Given the above, it is all the more important for common law spouses to turn their minds toward formulating an estate plan wherein they provide for their partner accordingly.
Thank you for reading!
We the North: Some Thoughts on Domicile
Die-hard Raptors fans, band-wagon followers, and even sport-neutral citizens alike could not deny the energy in the Toronto air this past Friday, June 14. This day followed the Raptors’ historic four-point defeat of the Golden State Warriors in game six of the 2019 NBA playoffs the night prior, as well as the raucous, joyful celebrations which rang through the city until the early hours of the morning. The Raptor’s win marks the first time in their 24-season history that the Raptors will be graced with the title of NBA Champion.
In my view, one of the most interesting parts of the Raptors’ championship is the sense of community, togetherness and connectedness to Toronto which the team’s journey has inspired. On Friday morning, the CBC broadcasted clips of fans who had tuned in to cheer the Raptors to victory during game six, both in Toronto, across Canada and internationally. While some of the interviewed members of the Raptors’ diverse group of fans and followers were born in Toronto, many had since moved to reside permanently in other cities in Canada and across the world. Despite this, these fans still felt a strong patriotism to Toronto inspired by the team’s fight to the top. The diversity in the team’s fan network is also reflected in the Raptors’ own varied makeup: the team itself is comprised of players from several different countries, including Canada, the United States, England, Spain and Cameroon.
The diversity both in the team’s fans and in its members brought my mind to the legal concept of domicile. In an Estates context, there are two types of domicile: one’s “domicile of origin” is where they are born, whereas one’s “domicile of choice” connotes a new place where a party takes residence, with the definitive intention of residing there permanently. One may also abandon their domicile of choice. In Canada, domicile is determined on a province-to-province basis.
One’s domicile will determine which jurisdiction’s laws will be applicable in particular situations, such as in a dependant’s support claim circumstance, or when one seeks a grant of probate to administrate an Estate, for example. As my colleague Stuart Clark wrote about previously, however, two Canadian cases – Tyrell v Tyrell 2017 ONSC 4063 and Re: Foote Estate 2011 ABCA 1 – seem to suggest conflicting rules surrounding how domicile impacts the administration of one’s Estate. While the Alberta Court of Appeal in Re: Foote Estate stated that the domicile of the Deceased “determines the applicable law for estate administration purposes” – suggesting that it is the testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate – the Ontario Court in Tyrell v. Tyrell stated that “for the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee.” In Tyrell, notwithstanding that the testator died domiciled in a foreign jurisdiction, the laws of Ontario governed the administration of the estate as the Estate Trustee was located in Ontario. Currently, there are no reported cases which cite Tyrell v. Tyrell has been cited to support this rationale. It will be interesting to see how the legal concept of domicile develops in this respect going forward.
In the meantime, we will see how sports, diversity, and the law intersect when the Raptors parade passes by the Hull & Hull offices this Monday.
Thanks for reading!
Hull on Estates #573 – When is a Certificate of Pending Litigation Appropriate?
This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss the recent decision of Sach v Viola, 2018 CarswellOnt 1824, and under what circumstances a certificate of pending litigation is appropriate.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #572 – Will Challenges and Mistake of Fact
This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #571 – Can you bind non-signatories to a settlement?
Today on Hull on Estates, Stuart Clark and Charlotte McGee discuss settlement agreements and non-signatories – specifically, if a settlement agreement affects the interests of a non-signatory to the settlement, can such a settlement bind the interests of the non-signatory?
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #570 – Drafting Solicitors and Will Challenges
This week on Hull and Estate, Natalia Angelini and Sydney Osmar discuss Dale v Prentice, in which the Ontario Superior Court of Justice addresses whether a drafting solicitor can represent the estate in a will challenge.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #569 – Beneficiary as a Witness to a Will? Don’t Go There.
In today’s podcast, Noah Weisberg and Sayuri Kagami discuss the problems caused by a beneficiary under a Will witnessing its execution in the context of the recent Saskatchewan decision of Mahin v Kolosnjaji, 2019 SKQB 32.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #568 – Proof in Solemn Form: Testing the Waters of No-Contest Clauses
In today’s podcast, Jonathon Kappy and Garrett Horrocks review the interaction between no-contest clauses and applications to prove a will in solemn form as discussed by the Court of Appeal of Alberta in Mawhinney v Scobie.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #567 – The decision of Kot v Kot
This week on Hull on Estates, Paul Trudelle and Kira Domratchev discuss the decision of Kot v Kot, 2018 SKQB 338, and the evidence required to be demonstrated by the party challenging a Will.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #554 – Golden Rule for Assessing Testamentary Capacity
This week on Hull on Estates, Noah Weisberg and Doreen So discuss the UK and Hong Kong Golden Rule for assessing testamentary capacity.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.