In British Columbia disinherited adult children have a strong claim against a parent's estate based on their moral entitlement to an inheritance. Tataryn was the seminal case in British Columbia which was ultimately decided by the Supreme Court of Canada. The importance of adult children dependent's moral claim in Tataryn was adopted by the Ontario Court of Appeal. But there is no clear court decision in Ontario suggesting that the moral claims of non dependent children are legally enforcable in Ontario.
After Marsha agreed to marry him, Marc gave her a $20,000.00 diamond engagement ring. Soon after Marc caught Marsha on a date with another man. He demanded that she give back the engagement ring. She refused. In her mind the engagement ring was a gift. Marc sued. Who do you think should get the ring? Let’s see what the courts say.
The author reviews Ontario’s laws of inheritance in the context of second marriages. He addresses the risk to implementing a person's testamentary intentions. For example, in Ontario, under certain circumstances a new marriage revokes previous wills, the failure to provide full and frank disclosure may invalidate a domestic contract and a court may still order a deceased’s estate to pay support to a dependant regardless of any agreement made to the contrary.
Courts use the equitable remedy of Rectification to fix certain errors in a Will. Exactly what evidence will be considered and the types of mistakes fixed gives rise to uncertainty and litigation. The author reviews some of these issues and recent case law on the topic.
Can you imagine burying a spouse and then being sued for support by his mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family’s an inheritance is unjust. Others argue that financial obligations should flow from the intensity and duration of life partner relationships regardless of the partners' marital status. What do the courts think?
The Illinois Supreme Court held that the testamentary clause disinherting a potential beneficiary for marrying outside the faith was valid. The test was whether the provision was capable of producing harm that its enforcement would be contrary to the public interest. The Illinois Supreme Court upheld the Will because they placed a premium on the right of individuals to decide what happens to their assets after they die. They disagreed with the lower courts who suggested that the clause in question was a restraint of marriage
Very often a parent appoints the favourite child to manage the parent’s property (“power of attorney”) or be the executor under the parent’s will. Perhaps the child is honest but has no idea what obligations are involved with being an attorney for property or as an executor and fails to keep proper records. Perhaps that child is very dishonest and the lack of records is simply his way to hide the improper use of his parent’s money. So what typically happens?
So if you suspect that the power of attorney has done something wrong what are some of the things you should look for? The first thing you should know is that a power of attorney has both a common law and statutory duty to keep proper records of all transactions involving the property.
A creditor may enforce a judgment for the payment or recovery of money by garnishment. Garnishment is a procedure whereby moneys owing to the debtor (garnishee) by a third person attach directly to the creditor (garnishor). Garnishment attaches to moneys held in a RRSP. In life, there is little question that RRSP’s vest in the owner of the RRSP. At death, section 2(1) of the Estates Administration Act states that any real and personal property of a person that vests in that person during life, is transferred to the personal representative of that person at death, regardless of whether the property is disposed of by will or any other testamentary disposition.
Executors often want to buy assets belonging to an estate. Beneficiaries often suspect the executors of wrong doing. So I often am asked whether it’s legal for an executor to buy an asset from the estate. The short answer is maybe, possibly, but not usually. it would be prudent to for all the beneficiaries to obtain independent legal advice. Furthermore, the purchase price should be somewhat more then fair market value. With all these arrows in his/her quiver the trustee might be well advised to seek preapproval of the sale from the court by bringing an application for the opinion, advice and direction of the court under Rule 14.05(3)(d), and under section 60 of the Trustee Act, R.S.O. 1990, c. T.23.
For those who wish to stop the distribution of non probatable assets it is important to know that more might be required then simply blocking probate by filing a notice of objection.
The best step an estate trustee can take is to approach an experienced solicitor for assistance in obtaining probate. The process will likely go far quicker and more efficiently.