This week on Hull on Estates, Paul Trudelle and Holly LeValliant discuss what is required to prove a common law relationship. The courts take a liberal approach to determining whether a relationship is common law.
The general factors used to assess the relationship are shelter, sexual and personal behavior, services, social, societal, support and children. Paul and Holly reference two cases in the podcast: Molodowich v. Penttinen and Perkovic v. McClyment.
Click here for more information Holly LeValliant.
Listen to Declarations of Death Act
This week on Hull on Estates, Sean Graham and Rick Bickhram talk about the Declarations of Death Act. They discuss what happens when a person goes missing from a jurisdiction and some possible remedies.
You know a trust has the potential to run off the rails when the beneficiary refers to the trustees as "The Three Musketeers".
After his untimely death in 2003, Dr. Robert Atkins’ widow sold his business netting proceeds of some $420 million. In his will, the famous diet guru set up two trusts: (i) a spousal trust that would benefit his wife, holding 90% of his assets, and (ii) a research foundation which would get the remaining 10%.
Cue the sword clanging of the three musketeers: a self-described entrepreneur, an accountant, and a lawyer, who befriended Ms. Atkins and became the widow’s closest advisors as well as trustees for the spousal trust (replacing the two trustees who had been appointed by Dr. Atkins). It is reported that Ms. Atkins subsequently agreed to pay each of them $1.2 million per year (excluding bonuses), signed them to 10-yr contracts, and allowed each of them to take out a $5 million life insurance policy on her life, naming themselves as beneficiaries.
Fast forward to a Wall Street Journal online report that a lawsuit had been filed by the Musketeers accusing Ms. Atkins of improperly firing them. Ms. Atkins and her new spouse asked for the trio to be removed as her trustees and further sought reimbursement of some of their fees. The relationship between the Musketeers and Ms. Atkins began to disintegrate in 2006 when Ms. Atkins met her new spouse to be, who himself then became increasingly involved in her finances. When the Musketeers balked at her new spouse’s demands to encroach for an additional $100 million for Ms. Atkins (above and beyond her $15 million annual income), he started making noise about having them removed as trustees.
That’s a lot of bread.
Have a great weekend,
In this week’s episode of Hull on Estates, David Smith and Diane A. Vieira discuss the issues surrounding spousal exclusion from the will of the deceased and how to challenge this exclusion.
Click "Continue Reading" to read the transcribed version of this podcast.
Spousal relationships (and their breakdown) and their interaction with estate litigation are the focus of this week’s blogs. In the practice of estate litigation, there is an immense body of applicable case law and statutory authority.
For the purpose of these blogs, the term "married spouse" is used to consider those entitlements which are only granted to those spouses who fall within the definition of marriage in Ontario. The term "unmarried spouse" is used to consider the entitlements of spouses who are not married but who are conferred benefits under the provisions of certain statutes.
(i) Rights of a married spouse on an intestacy
The entitlement of a married spouse on an intestacy is statutory: Succession Law Reform Act, Part II. A surviving husband or wife, on an intestacy, receives the entire estate of his spouse if there are no children. If there are children, the surviving husband or wife still receives the first $200,000.00 of the estate and either 1/2 of the remainder if there is one child or 1/3 of the remainder if there are two of more children of the marriage.
(ii) Rights of an unmarried spouse on an intestacy A surviving unmarried spouse, on an intestacy, receives no entitlement. A spouse is defined for the purposes of Part II of the Succession Law Reform Act as either a man or a woman who is married.
Although there are some cases in other provinces which suggest that this statutory provision offends the equality provisions of the Charter, the only available statutory remedy for an unmarried spouse on an intestacy in Ontario is to bring an application for support under the provisions of Part V of the Succession Law Reform Act.
Tomorrow, we will consider the entitlements of married and unmarried spouses under a Will and their entitlements when the benefit under the Will is less than adequate.
Have a great day, David. ——–