Recent reports indicate that Chadwick Boseman is the latest celebrity to die without a Will. His wife is currently seeking to be appointed administrator of his Estate.
This certainly shows that many people, including those with significant assets, often procrastinate when it comes to preparing a Will. The fact is that, no matter how many assets you have, a sound estate plan can help you address any potential tax liabilities, take advantage of certain planning strategies and otherwise make life much easier for your beneficiaries, as addressing an intestate estate can often have its challenges.
The benefits of making a Will are numerous, including (but not limited to) the ability to:
- Decide who gets certain personal items after your death;
- In contrast to an intestacy, provide for your children (if any), particularly if they are minors;
- Consider whether there are any parties who can complicate the distribution of your estate and address potential strategies in response to that;
- Appreciate what assets will form a part of your estate and what assets will flow outside of your estate, as well as the benefits associated with either;
- Take care of any pets that you may have (particularly those that may be expensive to maintain); and
- Decide who will be in charge of administering your estate.
Without a Will, you essentially leave the decisions respecting your assets in the hands of others and more often than not, in the hands of the Court. In certain situations, having no estate plan may fuel disagreements between your heirs which may leave long lasting effects on family relationships.
I, for one, think these are great reasons to make an estate plan!
Incidentally, it is “Make a Will Month” with the Ontario Bar Association. Click here for more details.
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In Ontario, if a person dies without a will, the Succession Law Reform Act (“SLRA”) dictates how the person’s estate is to be distributed. Part II of the SLRA provides that if the person dies with a married spouse, that spouse receives a share of the estate. If there are no children, the spouse receives the estate outright. If the deceased has children, may be entitled to receive a share of the estate. If there is only one child, the spouse receives the “preferential share”, and half of any estate in excess of the preferential share goes to the spouse and the other half goes to the child (or the child’s issue, if the child has predeceased). If there is more than one child, the spouse gets the preferential share and one-third of the excess and the other children share the remaining two-thirds. Again, if a child has predeceased the deceased, the child’s issue enjoys that child’s share.
Things get a little more complicated where there is a partial intestacy. If the spouse receives assets under the will, the spouse’s preferential share is reduced by the value of the property received under the will.
Note that the intestate provisions pertaining to spouses in Ontario apply to married spouses only. Common-law spouses are not entitled to a share of the estate on an intestacy. However, they may be entitled to dependant support under Part V of the SLRA.
In Ontario, the value of the preferential share is not referred to in the SLRA. The value of the share is set by regulation: O. Reg 54/95. Since 1995, the value of the preferential share has been $200,000.
British Columbia intestacy legislation is somewhat different. The relevant legislation is the Wills, Estates and Succession Act, SBC 2009, c 13.
Firstly, in B.C., a spouse is defined as including a married spouse AND a person with whom the deceased lived in a marriage-like relationship for at least two years immediately before the death.
Secondly, in B.C., there are different calculations of the “preferential share”. If all of the children are children of BOTH the deceased and the surviving spouse, then the preferential share is $300,000. If all of the children are NOT “common” to the deceased and the surviving spouse, then the preferential share is only $150,000.
Thirdly, in addition to the preferential share, the surviving spouse is entitled to the “household furnishings”, which is defined as being the “personal property usually associated with the enjoyment by the spouses of the spousal home”. In Ontario, the value of the preferential share presumably includes the value of any household furnishings.
Fourthly, the B.C. legislation provides that if the estate is greater than the preferential share, then the surviving spouse gets half, and the deceased’s descendants get the other half, regardless of how many children there are.
Fifthly, the WESA provides for situations where there are more than one “spouse’. In such a case, the surviving spouses are to share the preferential share in the portion to which they agree, or failing agreement, as may be determined by the court. The WESA does not appear to give any guidance as to how that determination is to be made.
If you are short of things to think about this weekend, consider:
- Whether it is time to reconsider the value of the preferential share?
- Whether it makes sense to allow the spouse to have the household furnishings in addition to the preferential share. This personal property usually has nominal resale value, is difficult to evaluate, and often has sentimental or practical value to the surviving spouse.
- Whether Ontario should adopt a definition of “spouse” that includes common-law spouses for intestacy purposes, or whether resort to dependant support provides sufficient protection for common-law spouses?
- Whether the fact that the surviving children of the deceased are also the surviving children of the surviving spouse should impact on the value of the preferential share, as it does in B.C.?
- Whether the percentage of the estate in excess of the preferential share that the surviving spouse gets should vary depending on how many children the deceased had (that is, 50% if only one child, but only 33% if more than one child)?
Thank you for reading. Have a great weekend.
A couple of weeks ago, my colleague Noah Weisberg and I did a podcast about the recent Ontario Superior Court of Justice decision Re Vaudrey, 2019 ONSC 7551. But for those who prefer to read rather than listen, I thought I would provide a brief summary on the blog as well.
The testator in Re Vaudrey died in September 2018. Prior to his death, he had been married to Ethel Vaudrey. The testator and Ethel had been separated for a number of years, but had not divorced. Ethel predeceased the testator, passing away in 2007.
The testator and Ethel had two daughters, Sheila and Kristin. Sheila also predeceased the testator in 2013. She had never married and had no children. After the testator and Ethel separated, Kristin became estranged from the testator. The decision notes that Kristin described the testator as emotionally and verbally abusive.
Kristin was the only surviving family member of the testator.
The testator left a Will executed in 2005. The court was of the view that, based on its format and content, the Will did not appear to have been prepared by a lawyer.
The Will provided that Sheila was to be appointed as estate trustee, and inherit the residue of the testator’s estate, provided that she survived the testator by 30 days. If Sheila did not survive the testator for 30 days, the Will provided that Ethel was to be appointed as estate trustee, and inherit the residue. Again, however, this was conditional on Ethel surviving the testator by 30 days. As mentioned above, both Sheila and Ethel predeceased the testator.
The Will was witnessed by Sheila and another witness.
Lastly, the Will also specifically stated that “under no circumstances is any part of [the testator’s] estate to be transferred to [his] estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”
Unfortunately for the testator, he had not set out in his Will how the residue of his estate was to be distributed in the event that both Sheila and Ethel predeceased him, as they did. The court found that the residue of the estate was to be distributed pursuant to the intestacy rules set out in s. 47 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). On this basis, Kristin was determined to be the sole heir-at-law of the residue. Accordingly, despite the testator’s wish that Kristin not inherit any part of his estate, his failure to include a gift-over clause with respect to the residue resulted in her inheriting the entire residue.
It is also interesting that Sheila was a witness to the Will. Pursuant to s. 12 of the SLRA, where a beneficiary witnesses the execution of a Will, the bequest to that beneficiary will be void. Even if Sheila had survived the testator, the gift of the residue to her would have been void in any event.
Thanks for reading,
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A recent decision by an Egyptian court saw the reversal of the trend in following Islamic Sharia inheritance law under which female beneficiaries are entitled to half the interest of their male counterparts.
The claimant, a human rights lawyer, applied to obtain the same rights as her brothers on the death of her father. Her case was previously dismissed by two courts.
In Egypt, Sharia principles are typically applied unless the parties agree that Christian inheritance laws, which do not favour male beneficiaries over females, instead be followed. In this case, the claimant and her brothers agreed that the administration of their father’s estate would not be subject to Sharia inheritance rules.
Last year, a proposed law in Tunisia designed to promote equality in respect of inheritances sparked discussion regarding unequal inheritances in a number of jurisdictions including Egypt. A 2017 survey suggests that over half of Tunisia’s population remains opposed to equal inheritance rights.
It is anticipated that this decision may result in significant change in jurisdictions where Sharia law has historically been applied in respect of personal property, regardless of religion.
Canadian courts have also considered the issue of cultures that may support an estate plan favouring sons over daughters simply on the basis of their gender. In Grewal v Litt, 2019 BCSC 1154, the daughters of the deceased challenged the Wills left by their parents, who both died in 2016, on the basis that they discriminated against them in favour of their brothers on the basis of their sex. The four daughters applied under Section 60 of the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WESA“), for the variation of the Wills that directed the payment of $150,000 to each daughter, while the residue of the estates valued at greater than $9 million was left to the two sons.
Justice Adair noted that there was no dispute that the parents owed a moral obligation to their daughters under BC law, and, as the Wills made inadequate provision for them, they should be varied under the WESA. The Court attempted to resolve the matter by balancing the adequate, just, and equitable provision for the daughters with their parents’ testamentary autonomy and varied the division of estate assets from approximately 93% in favour of the sons with only a combined 7% for the daughters, to the more equitable division of 15% of the value of the estates for each daughter and 20% for each son. Notwithstanding the granting of the variation of the Wills, the Court stopped short of finding that the parents’ testamentary intentions were motivated solely by unacceptable discrimination against the daughters.
While many provinces do not recognize a parental obligation to benefit a non-dependant adult child after death, coming years may nevertheless see an increase in the number of challenges to a will on the basis that its terms are discriminatory.
Thank you for reading.
Other blog posts that may be of interest:
Most people know that if a person dies without a Will, the laws of intestacy govern the division of his or her estate. Specifically, it is Part II of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA“) that is titled “Intestate Succession” that comes into play.
The question of who inherits where there is no Will is easily answered in some of the following scenarios:
- Where there is a surviving spouse (limited to married spouses, by the way), said spouse is entitled to the entirety of the property of the deceased (section 45(1));
- Where there is a surviving spouse and one child, spouse receives a preferential share of the estate of the deceased (i.e. $200,000.00 as of today) and if anything is left over, it is divided equally between spouse and child (section 46(1));
- Where there is a surviving spouse and two or more children, the spouse is entitled to a preferential share of the estate of the deceased and 1/3 of what is left over. The remainder is then divided between the issue of the deceased (section 46(2)).
The SLRA further addresses how the division of assets is to take place where the only surviving relatives are parents, brothers and sisters and nieces and nephews (in respective order of preference). If the deceased has no surviving parents, brother/sisters or nieces/nephews, the next of kin provision (section 47(6)) applies.
Despite the fact that the SLRA attempts to bring clarity to the division of one’s intestate estate, it appears that certain situations may arise that would lead to confusion, absent case law that would provide some guidance.
In Farmer Estate v Karabin Estate, an executor of a niece who predeceased the deceased commenced an application in respect of her alleged share in the estate of the deceased. The Ontario Court of Appeal found that the SLRA is confined to nieces or nephews who do not predecease the deceased and does not extend to more remote issue. The Court of Appeal relied on section 47(4) of the SLRA which is worded as follows:
“Where a person dies intestate in respect of property and there is no surviving spouses, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.” [emphasis added]
In interpreting this provision, the Court relied on the definitions of “child” and “issue” as defined in the SLRA, namely the definition of “child” includes a child conceived before and born alive after the parent’s death and the definition of “issue” includes a descendant conceived before and alive after the person’s death.
In another matter, Kiehn v Murdoch, the Ontario Superior Court of Justice found that grandnieces and grandnephews are excluded from sharing in the estate of a deceased by operation of section 47(4).
Unfortunately in the circumstances where a particular scenario arises that has not been clearly addressed by the SLRA and subsequent case law, an application for directions may need to be commenced to receive some clarity from the Court as to how a particular intestate estate is to be divided.
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Traditionally, the transition from adolescence into formal adulthood has been marked by certain milestones: moving in with one’s partner, engagements, weddings, and the first purchase of a car or house, for example.
Today, however, as Dr. Steven Mintz notes in this Psychology Today article on modern adulthood, the journey to achieving adult status is “far slower and much less uniform” than it was in previous generations.
The Canadian Encyclopedia reports that in recent years, the average age of first marriage in Canada is close to 30 years old for women, and 32 years old for men. This contrasts sharply with the 1960s and 1970s, when young people in Canada were more likely to marry between the ages of 23 and 25 years old.
Similarly, while the average young adult in the sixties could expect to achieve such “emblems of adulthood” as home ownership, marriage, children, and a stable job by around the age of 24, far fewer young adults in the 2000s will have attained these markers by this same period. According to Statistics Canada, 54% of men and 43.4% of women in Canada have never married by their early thirties. In Mintz’s article, he notes that rates of childbearing, homeownership, and even car ownership for young adults have also distinctly declined from those of past generations.
Notably, many of the traditional adulthood markers relate to asset accumulation – whether it’s the paycheque associated with a steady and lucrative job, or an investment in a home or vehicle, for example. With fewer millennials travelling down these conventional paths to adulthood, and arguably having fewer assets to their names, should today’s young adults be concerned with formulating a plan for their Estate?
In my view, the answer is yes. This blog will address three of many reasons to set up an Estate Plan as a young adult today.
- Your assets can be distributed to the beneficiaries of your choice, instead of being determined by Intestacy
In Ontario, Part II of the Succession Law Reform Act (the “SLRA”) governs how one’s assets will be divided if a person dies “intestate” – namely, without a Last Will.
As many young millennial adults are unmarried and without children, I will focus on subsections 47(3)-(11) of the SLRA. These subsections delineate how an estate will be divided if one dies without a will and has neither a spouse nor children (notably, common law spouses are not included as a “spouse” on intestacy). These rules can be summarized as follows:
- If the Deceased has no spouse and no issue, the estate goes to the Deceased’s surviving parents, equally.
- If there are no surviving parents, the estate goes to the Deceased’s siblings equally (and if a sibling has predeceased, that sibling’s share goes to their respective children).
- If there are no siblings, the estate goes to the Deceased’s nephews and nieces equally.
- If there are no nephews or nieces, it goes to the next of kin of equal degree of consanguinity – in some cases, distant relatives can end up inheriting from the estate, despite otherwise having no relationship with the Deceased.
- If there are no next of kin, the estate escheats to the Crown.
Making an estate plan empowers a party to decide specifically to whom their assets – of both financial and sentimental value – will go.
Importantly, and as we have blogged on previously, any unpaid debts of the Deceased, in addition to the expenses and liabilities of the estate (e.g. funeral expenses, taxes, legal fees, etc.), are a first charge on the assets of the estate, and must be paid by the estate before assets will be distributed to beneficiaries.
- You can choose who will manage your assets, limited or not
By way of a Last Will and Testament, one can appoint an Estate Trustee (or Estate Trustees) of their Estate. Among many other critical duties, the Estate Trustee is responsible for securing the assets of the Estate; settling any of the of the Deceased’s debts and taxes; ensuring the Deceased’s assets are distributed in accordance with the Deceased’s wishes; and, often, tending to funeral arrangements.
When a person dies intestate and an Estate Trustee is not appointed, the process of the administration of their Estate becomes much more onerous, potentially more expensive, and can be significantly delayed. By executing a Will which appoints an Estate Trustee, one can ensure that a responsible and trustworthy person, who is up to the task, will give effect to their final wishes and manage their estate effectively after death.
- You can document your intentions for your intangible, digital assets
This recent Globe and Mail article sums it up succinctly: neglecting to plan for one’s online assets can create “huge headaches” for executors, especially in light of Canadians’ “expanding digital footprints”.
In addition to those online assets which have true financial value – such as cryptocurrency, Paypal accounts, and some loyalty rewards programs – many digital assets, like Facebook or Instagram accounts, can have significant personal and sentimental value. By stating one’s preferences for digital assets management in an estate plan, one can better ensure that their wishes for these assets are honoured, and potentially reduce conflicts between loved ones that might otherwise arise in this respect. The Globe and Mail cites Facebook profiles as a prime example:
” … some loved ones may want a family member’s Facebook profile to remain active after they pass away, for remembrance; while others might want to delete the account, for closure.”
If this article has inspired to start your estate planning process, we encourage you to meet with a trusted Estates Lawyer to assist with your planning needs.
Thanks for reading!
One of the most gifted items this past holiday season were apparently the home DNA tests which can reveal your genetic ancestry or even if you are predisposed to certain health conditions. As anyone who has taken one of these tests (myself included) can tell you, the test results also contain a long list of other individuals who have also taken the test who you are related to, allowing you to reconnect with long lost relatives.
While my own test results did not reveal any family secrets, the same cannot be said for other individuals who have taken the test, as there have been a growing number of articles recently about how home DNA tests have revealed family secrets which otherwise may never have come to light. Although not all of these secrets are necessarily negative, such as finding a long-lost sibling, others, such as finding out that the individual who you believed to be your father was not in fact your biological father, could be life changing. For the latter, the phenomena is apparently common enough that the Atlantic has reported that self-help groups have formed around the issue, such as the Facebook group “DNA NPE Friends”, with “NPE” standing for “Not Parent Expected”.
In reading through these stories I couldn’t help but wonder if having such a result could impact your potential entitlements as a beneficiary of an estate. What happens if, for example, the individual who you previously believed to be your biological father but the test reveals was not in fact your father should die intestate, or should leave a class gift to his “children” in his Will without specifically naming the children. Could finding out that you were not actually biologically related to your “father” result in you no longer being entitled to receive a benefit as a beneficiary? Could you potentially be disinherited as a beneficiary of an estate by voluntarily taking a home DNA test if your right to the gift is founded upon you being related to the deceased individual?
Who is legally considered an individual’s “parent” in Ontario is established by the Children’s Law Reform Act (the “CLRA“). Section 7(1) of the CLRA provides that, subject to certain exceptions, the person “whose sperm resulted in the conception of a child” is the parent of a child. Section 7(2) of the CLRA further provides for a series of presumptions regarding the identity of the individual’s “whose sperm resulted in the conception of a child“, including, for example, that there is a presumption that such an individual is the birth parent’s spouse at the time the child is born, or the individual in question certified the child’s birth as a parent of the child in accordance with the Vital Statistics Act (i.e. signed the birth certificate). To the extent that there are any questions about parentage, section 13(1) of the CLRA provides that any interested individual may apply to the court at any time after a child is born for a declaration that a person is or is not the legal parent of the child.
In applying these presumptions to our previous questions about the home DNA test, if, for example, the individual who you previously believed was your biological father was your birth mother’s “spouse” at the time you were born, or signed the birth certificate, it would appear that, subject to there being a declaration under section 13(1) of the CLRA to the contrary, there would continue to be a presumption at law that the individual who you previously believed to be your biological father would continue to be your legal “parent” in accordance with the CLRA. To this respect, in the absence of a formal declaration under section 13(1) of the CLRA that the individual was no longer your legal “parent”, there would appear to be an argument in favour of the position that the individual who you previously believed to be your biological father would continue to be your legal “parent”, and that you should continue to receive any benefits which may come to you as a “child” on the death of your “father”, whether on an intestacy or a class bequest to his “children” in his Will.
This presumption, of course, is subject to the ability of any interested person (i.e. the Estate Trustee or one of the other beneficiaries) to seek a formal declaration under section 13(1) of the CLRA that you were not in fact a “child” of the individual you believed to be your biological father. If such a formal declaration is ultimately made by the court, you would cease to be the legal “child” of the individual who you previously believed to be your biological father, and would likely lose any corresponding bequests which may have been made to you on an intestacy or as a member of the class “children” in the Will.
The use of DNA tests to establish the potential beneficiaries of an estate is not a new phenomenon (see: Proulx v. Kelly). What is new, however, are people voluntarily taking such tests en masse in a public forum, potentially voluntarily raising questions about their rights to receive an interest in an estate when such questions would not have existed otherwise.
Thank you for reading.
A recent decision of the Ontario Superior Court of Justice highlights the importance of preserving a surviving married spouse’s ability to elect for an equalization of net family properties within the six-month limitation period.
Upon death, a surviving married spouse in Ontario can elect for an equalization of net family properties under Sections 5 and 6 of the Family Law Act instead of taking under the predeceasing spouse’s will or, if the spouse has not left a will, on intestacy. Subsections 6(10), 6(11), and 7(3)(c) of the Family Law Act provide that the surviving spouse must ordinarily make an election within six months of date of death and not after that date. The Court may, however, extend the election deadline in the event that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and, (c) no person will suffer substantial prejudice by reason of the delay (subsection 2(8) of the Family Law Act).
Courts have reviewed the circumstances in which an extension is typically ordered. The requirement that the delay be incurred in good faith has been interpreted as meaning that the party has acted honestly and with no ulterior motive (see, for example, Busch v Amos, 1994 CanLII 7454 (ONSC)).
In Mihalcin v Templeman, 2018 ONSC 5385, a surviving spouse had commenced two claims with respect to the estate of her late husband and an inter vivos gift made to a live-in caregiver. However, neither of the proceedings had sought any relief relating to an equalization of net family properties, nor did the wife take any steps to make an election or to extend the time within which she was permitted to do so. The Court reviewed whether the delay in making the election was in good faith. The evidence regarding the reasons for the delay in electing for equalization were considered to be vague and insufficient to satisfy the evidentiary burden that the delay was incurred in good faith. Accordingly, the applicant was not permitted to amend her pleadings to incorporate this relief.
Justice Bruce Fitzpatrick commented as follows with respect to the importance of limitation periods, generally (at para 48):
I am mindful of the general importance of limitation periods for the conduct of litigation. There is an obligation on parties to put forward all known legitimate claims within certain time limits. In this case, the time limit was relatively short. I think it cannot be readily ignored. The evidentiary record is not sufficient for me to say that justice requires me to exercise my discretion in favour of allowing [the applicant] to amend her claim so as to include a claim for equalization in all of the circumstances.
Where an equalization of net family properties may be sought at a later time (for example, pending the outcome of a will challenge or dependant’s support application), it is prudent to seek an extension well before the expiry of the six-month limitation period as courts may or may not assist a surviving spouse in seeking this relief down the road, if and when it may become advisable.
Thank you for reading,
Other blog entries/podcasts that may be of interest:
- When is it Appropriate to Extend the Time Granted in Favour of Equalization Under the Family Law Act?
- Equalization Claims and Unequal Division of the Net Family Property
- Family Law Equalization Claims and Bankruptcy
- Consolidation of Family Law Act and Dependant Support Claims
In Canada a person generally has the freedom to leave their estate to whomever they choose; known as “testamentary freedom”. However, in many of the civil code countries of Europe, a portion of the estate must be distributed to legitimate heirs; known as “forced heirship”. In Portugal, legitimate heirs include the spouse, biological descendants, adopted children, and ascendants of the deceased. The reserved portion covers up to two thirds of the whole estate, with division of the estate generally as follows:
Spouse’s portion in absence of descendants or ascendants: 50%.
Spouse and Descendants: The reserved portion is two thirds; normally distributed per capita, but in any case the spouse gets a minimum of one quarter of the reserved portion (which results in one sixth of the whole estate).
Only Descendants: The reserved portion depends on the number of children. For one child it is 50%, for two or more it is two thirds.
Spouses and Ascendants: two thirds, of which two thirds are intended for the spouse and one third for the ascendants.
Only Ascendants: 50% for those of first degree, for further degrees one third.
In the case of an intestacy and no spouse, ascendant or descendant, the estate passes to the siblings and their descendants, in their absence to the family up to the fourth degree of kinship, and then finally to the State.
The testator’s freedom to leave the remainder of the estate after the reserved portion is not generally restricted except in some cases like: the deceased’s last treating doctor if the testament was written during the illness which caused the death, the priest of the community where he attended, or a curator, tutor, or administrator of the deceased.
If you are interested in further information on the topic of international inheritance we are pleased to assist, along with our lawyer colleagues in Lisbon Portugal.
Thanks for reading!
When a marriage breaks down, spouses often have an overwhelming amount of issues to consider. For many, all they want to do is figure out how to split up the assets (and kids) and move on with their lives. Sometimes, spouses will separate without formally divorcing. Although life after marriage may be the key consideration for most, separated spouses should also take time to consider what happens on their death and whether or not they want their spouse to share in their estate.
Draft a Will
The most obvious way of ensuring that your separated spouse doesn’t benefit from your death is to draft a Will. By setting out one’s intended disposition of assets, a testator will avoid the provisions of Part II of the Succession Law Reform Act, which provides for a share of the Estate to pass to the legally married spouse of a person who dies intestate. But remember, including a provision in the will that the spouse is to be excluded from inheriting is not sufficient to keep a surviving spouse from inheriting on an intestacy (see our recent blog on this topic here).
Of course, if property rights between the spouses have not been settled following separation, the surviving spouse may still be at liberty to elect in favour of equalization of net family property pursuant to the Family Law Act.
Separation Agreements and Release of Intestacy Rights
If the parties have consulted lawyers and formally settled all of the issues surrounding their marriage, they are likely to have entered into a separation agreement. Often, parties to such agreements will walk away thinking that they have fully separated out their lives and settled all issues arising as a result of marriage, cohabitation, or the breakdown of the relationship. However, solicitors drafting such agreements should be careful to properly release each spouse’s interest in the estate of the other, in case of an intestacy. In particular, while no one likes to think of it, cases have occurred where a spouse dies only days after entering into a separation agreement and before they have had the opportunity to draft a Will.
In order to properly release a spouse’s intestate interests in the other spouse’s estate, there must be a specific release of such rights using clear, direct and cogent words (see the leading case in Ontario of Re Winter,  DLR 134 (Ont H Ct)). In Re Winter, the wife released the husband as follows:
The wife of the second part covenants and agrees and does hereby release the husband of the first part from all claims present, past or future against the husband for maintenance, alimony or separation allowance and acknowledges that she has no further claims against the husband nor against the estate of the husband of the first part.
The Court found that although there was a release against the husband’s estate, the release only dealt with claims for “maintenance, alimony or separation allowance” and was not sufficiently clear and cogent for the wife to have released her intestacy rights against the husband’s estate. As a result, the wife inherited on the husband’s intestacy (a result likely to have displeased the other intestate heirs and the husband, had he been alive).
Change Your Beneficiary Designations
Finally, in addition to thinking of the potential intestacy rights of a surviving spouse, don’t forget assets passing outside of the estate. Make sure to have all beneficiary designations on insurance policies, registered accounts (RRSPs and TFSAs), and pensions updated following separation.
Thanks for reading!