In many ways, Watson v. Herom is a typical will challenge case. The litigants are sisters and the plaintiff was challenging their stepfather’s last will and testament, which excluded her and left the entirety of his estate to the defendant.
In Ontario, the current state of the law is such that a testator is free to exclude an adult, independent child from their will on the basis of their sexual orientation. The discriminatory intent may even be written into the will. For example, the following provision “I am excluding my only son from my will because he is homosexual” is, according to the principles set out by the Court of Appeal for Ontario in the 2016 Spence v. BMO Trust Company decision, presently considered to be an acceptable exercise of a testator’s testamentary autonomy.
In this case, the children were fortunate that the judge found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.
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.
When Scholastic’s CEO Richardson Robinson Jr. died in June, he apparently shocked his family by giving control of the $1.2 billion company and his personal possessions to Scholastic’s Chief Strategy Officer, with whom he’d had a long-term relationship, rather than to his siblings, children, or ex-wife.
Harry, 85, wants to marry 75-year-old Esther, but he does not want to lose his widower's pension. They agree not to obtain a marriage license or register the marriage, but instead to have only a ritual ceremony in a rabbi's office. Harry dies and his will leaves his assets to his children. Does only a religious marriage ceremony give Esther any rights to Harry's estate?
Joseph was 60 years old when he lost his wife to cancer. Online he met an Israeli named Rebecca, a 40-year-old widow. They emailed each other, grew to care for one another and decided to marry. Rebecca and her children moved into Joseph's home. The adult children from Joseph's first marriage feared that Rebecca and her children were going to take away their inheritance. Joseph assured his children that Rebecca signed an agreement under which she gave up all her claims under the Family Law Act and could not claim support against his estate when Joseph died. Joseph assured them they he left his children all of his money. Should the children have relaxed? Maybe – Maybe not.
Allegations that younger women sometimes marry older men for their money are nothing new. But with people living longer and the transfer of one trillion dollars from one generation to the next, it appears as if the concern about financial predators is more commonplace. In part, it’s because the Baby Boomer generation has considerable wealth, and while medical science has increased the average lifespan it has not made comparable progress in reducing the cognitive impairment associated with the aging process. More wealthy elderly people with heightened vulnerability are easier prey for the financial predator.
The Court’s decision in Fichera v. McAllister acts as an important reminder of the importance of creating a contemporaneous evidentiary record of a parent’s intention when gifting property to their adult children.
As discussed in our blog, Gift or Loan? A case review of Greco v. Frano, one of the issues frequently raised in estate litigation is how to characterize funds that were advanced to/by a deceased. These types of cases often focus on whether the funds should be considered to be a gift or a loan. One of the reasons the courts are faced with these types of claims so frequently is that these are non-arm's length transactions and family members often do not feel the need to document their intentions as they would if they were dealing with arm's length parties.