Suppose Jane knew she was dying and gave the keys to her cottage to her favourite niece. Jane’s lawyer transferred title of the cottage to the niece. After Jane’s death, her husband, Mark started a law suit against the estate for support. He claimed to be a dependant and sought to have the capital value of the cottage deemed to be part of the net estate for purposes of ascertaining the value of estate. His lawyers claimed that the gift was invalid. Let’s take a moment to review Mark’s claim.
In Canada, the law balances the idea of testamentary independence against public policy concerns. Two British Columbia courts have ruled that in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. To date, this issue has not been addressed in Ontario's courts.
The average person goes to a lawyer because they just feel they were treated unfairly. I read a case recently and thought long and hard about how the plaintiff, Mary, must have felt. Her lawyer could not go to court and just say Mary was treated inappropriately. We lawyers must apply the facts to legal doctrines and theories. We rely on older cases to show that in similar circumstances the courts have granted damages to our clients. So let’s go through the facts of this case, see why Mary felt she was treated unjustly, and look how the courts applied the law to her situation.
The Estate and Trusts Group, Lawyers Division Bnai Brith and the adult education committee of Shaarei Shomayim are sponsoring a continuing legal education seminar entitled “Financial Predators and the Elderly – Banton v Banton.”
A recent case in Ontario Canada, Proulx v. Kelly, addresses how DNA testing is relevant to estate litigation disputes. When the deceased has not made a will Ontario's laws of intestacy govern and if there is no spouse the next of kin inherit. With respect to receiving an inheritance under an intestacy, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children.
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.
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?