“Unfairness” is the motivation many clients cite when they complain about a will. Unfortunately, unfairness is not a good enough reason for a judge to set aside a will. So what is a good reason? First, to make things a little easier, let’s introduce a key term when discussing wills. The person who makes a will is called a testator.
Upon someone’s demise a personal representative is appointed. That appointment may come about through a testamentary document or by court order if there is an intestacy. The personal representative has two roles. He or she is responsible for collecting all the assets and paying the liabilities of the deceased. Thereafter, he/she must distribute the estate in accordance with the terms of the will, or if applicable, the laws of intestacy, or, if elected by the surviving spouse, under the entitlement provisions found in section 5 of the Family Law Act.
My expertise is not tax. But the changes are so important to solicitors who do estate planning and administration, as well as to people of means, that I felt it important to help raise awareness about what is going on. So to prepare this blog, I reached out to my colleagues who have expertise in this area. The ensuing research revealed additional changes in estates and tax laws that will have a significant impact on both practitioners and persons of means.
Starting January 1, 2016, estates will only benefit from graduated tax rates for the first 36 months after death.. After that point, the estate will have a deemed year-end of December 31st and will be subject to tax at the highest marginal rate on every dollar earned.
The traditional rule in Ontario is that one cannot challenge a will while the testator is still alive. However, in recent years, there have been some cases in which judges have expressed a willingness to adjudicate upon the validity of a will prior to the testator’s death. These cases might be mere anomalies or they might be signs that the general rule is weakening.
“Dependant’s Support” may be the only way for the disinherited to obtain a share of an estate. But how does dependant's support work? This primer is designed to give you the basics.
Imagine a woman is so infuriated with her husband for his philandering, gambling and drinking that she disinherits him. Upon her demise, the husband commences an application for support under Part V of the Succession Law Reform Act (the “SLRA”). The husband qualifies as a dependant because he is a spouse and his wife had a legal obligation to support him. What impact, if any, would his past behaviour have on his entitlement to dependant’s support?
There is interplay between sections of the Family Law Act (“FLA”), and those of the Succession Law Reform Act (“SLRA”), in particular as it relates to the definition of “dependant”. That interplay may affect the second prong of the two prong test to determine who, in fact, is a dependant for the purposes of bringing a dependant’s support claim.The law is unclear on whether one may contract out of a dependant’s support claim by entering into a separation/domestic agreement upon the termination of a marriage or marriage-like relationship. The case law is very fact-specific, and below is a summary of some recent decisions.
People often err when looking at the amount of damages a court will award for wrongful dismissal. They sometimes presume that the maximum damage awards are set in stone. As the case we review below will demonstrate, there are times that the courts are so troubled by the conduct of employers that new records are set in damage awards. So let’s talk about the firing of a Rabbi by a synagogue.
Suppose a couple sign an agreement not to sue each other’s estate and one spouse did not get legal advice before signing the agreement. Would a judge hold that spouse to the agreement? In 2003, Justice Desotti, an Ontario Superior Court judge, said, “While I cannot conclude that there will be no agreement involving an unrepresented party that is not declared to be valid, I am certain that it will be the exception and not the rule.” Based on this decision it seems as if, as a general rule, when one of the spouses did not have a lawyer the agreement will be set aside. It’s 11 years later – let’s see how the law has evolved.