Suppose that prior to the death of your spouse the two of you signed an agreement where you both committed not to sue each other’s estate. Also imagine that you did not get legal advice before signing the agreement. Would a judge hold you to that agreement? It depends.
Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable” and should be set aside. The case was heard in Montana.
In the Verch case, Albert left his entire estate to his daughter-in-law Dianne by-passing his estranged son Ken – Dianne’s estranged husband – and his daughter Donna who resided in Alberta. Ken and Donna brought an application to have Albert’s Will set aside on numerous grounds. In their final submissions at trial, their lawyers included an argument that Albert had a legally enforceable moral obligation to provide for them in his Will. The Ontario court dismissed the application. Some might argue that this decision stands for the proposition that, in Ontario, moral claims of adult children against their parents’ estate are not legally enforceable.
Once a parent is declared incapable, the children can, under the right circumstances, be appointed guardians of their parents’ property. Judges recognize that a person who is genuinely incapable might need a guardian, but judges are also reluctant to order that a person undergo a capacity assessment when that person is unwilling. After all, a capacity assessment can be seen as an intrusive and demeaning exercise. A perfect example of this type of fight happened in the case of Ida and Philip Abrams.
Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable”
When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, G-d forbid, the marriage breaks up and/or when the wealthy spouse dies. So if the couple each hire good lawyers and the prenuptial agreement clearly spells out their agreement is that contract still open to challenge? Maybe. There is some question whether a surviving spouse can still sue for support even when she signed a valid prenuptial agreement. Let’s look at the law.
Challenging a prenuptial agreement in the context of estate litigation happens more often than you think. When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, God forbid, the marriage breaks up and/or the wealthy spouse dies. So, if the couple each hire good lawyers and the prenuptial contract clearly spells out their agreement, is that ‘pre-nup’ still open to challenge?
In the LeVan case, Richard’s family’s business was worth $30 million. Before his marriage to Erika, Richard’s family insisted that they enter into a marriage contract. The contract excluded Richard’s business interests and severely restricted Erika’s rights to support upon end of marriage or upon Richard’s death. The court set aside the contract and the LeVan case became the seminal case for the proposition that full and frank disclosure should be a foundation stone of every domestic contract.
In the LeVan case, Richard’s family’s business was worth $30,000,000. Prior to his marriage to Erika, Richard’s family insisted that they enter into a prenuptial agreement. The contract excluded Richard’s business interests and severely restricted Erika’s rights to support upon the dissolution of the marriage or upon Richard’s death. The court set aside the marriage contract and the LeVan case became the seminal case for the proposition that full and frank disclosure should be a foundation stone of every domestic contract.
Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly. The statutory authority to appoint the ETDL is found in Section 28 of the Estates Act, which provides that an ETDL has all the rights and powers of a general administrator, other than the right of distributing the residue of the property. Generally, an ETDL is appointed when the court feels a neutral third party should be administering an estate to preserve estate assets.