Category: Hull on Estates

18 Jun

Hull on Estates #574 – Social Media in the Context of Estate Litigation

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Today on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss the role of social media in the context of Estate Litigation.

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18 Jun

Common Law Spouses in Ontario and Intestacy

Charlotte McGee Common Law Spouses, Estate & Trust, Estate Planning, Hull on Estate and Succession Planning, Hull on Estates Tags: 0 Comments

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.

There are significant differences between some of the legal rights that common law and married couples enjoy

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!

Charlotte McGee

04 Jun

Hull on Estates #573 – When is a Certificate of Pending Litigation Appropriate?

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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.

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07 May

Hull on Estates #571 – Can you bind non-signatories to a settlement?

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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?

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09 Apr

Hull on Estates #569 – Beneficiary as a Witness to a Will? Don’t Go There.

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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.

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19 Feb

Hull on Estates #566 – Residents’ Bill of Rights

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This week on Hull on Estates, Stuart Clark and Doreen So discuss the Residents’ Bill of Rights within Ontario’s Long-Term Care Homes Act, 2007.

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08 Jan

Hull on Estates #563 – Styres v Martin

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In today’s podcast, Jonathon Kappy and Sayuri Kagami discuss the recent Court of Appeal decision in Styres v Martin, 2018 ONCA 956, where the Court ordered a new trial of the issues. The Appellant had suffered catastrophic brain injuries after a motorcycle accident and subsequently entered into a long-term relationship with the Respondent to whom he eventually transferred his home. On Appeal, the Court of Appeal examined some of the important issues that need to be examined in such a matter.

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24 Dec

Hull on Estates #562 – Revisiting the Pecore Principles: Tiedemann v Tiedemann

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In today’s podcast, Paul and Garrett discuss the decision in Tiedemann v Tiedemann and revisit some legal principles from the Pecore decision that are often overlooked in light of the well-known analysis on the presumption of resulting trust.

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11 Dec

Hull on Estates #561 – The Question of a Limitation Period in a Will Challenge

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This week on Hull on Estates, Natalia Angelini and Kira Domratchev discuss the decision in Shannon v Hrabovsky, 2018 ONSC 6593, and the question of a limitation period in a Will challenge.

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27 Nov

Hull on Estates #560 – Wall v. Shaw – Limitation Periods and Passing of Accounts

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Today on Hull on Estates, Stuart Clark and Doreen So discuss the recent decision of Wall v. Shaw, 2018 ONCA 929, and its potential impact upon the availability of limitations defences in an Application to Pass Accounts.

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