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Do mistresses have a right to inheritance?

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Can you imagine burying a spouse and then being sued for support by a 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 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?

In Nowell v. Town Estate the deceased had a 24-year extramarital affair. During the week he lived with his wife, but on the weekends this man spent time with his mistress, gave her gifts worth about $125,000 and promised to support her. The mistress contributed to the man’s work as an artist without compensation. Left nothing in the will, she sued the estate. Do you think she deserved any money? The Ontario Court of Appeal did.

The judges recognized that a 24-year relationship was more than casual and for the last 13 years it was quasi-spousal. The judges felt the mistress should be fully compensated because the estate was unjustly enriched. Mr.Town accepted his mistress’ help, did not pay for it, and he benefited financially. The court was influenced by the fact that the mistress made Mr. Town the focal point of her life and that through the years Mr. Town assured his mistress that he would look after her. While this did not create a legal relationship, it proved the nature of the relationship. The court still awarded her $300,000.

In Mahoney v. King a mistress successfully sued a married man for support because the court found that she was a common law spouse. Arguably, a mistress suing her paramour’s estate could use this case as a precedent. As a ‘spouse’ the mistress would qualify as a dependant and would be entitled to support under the Succession Law Reform Act, R.S.O. 1990, c. S.26, if her paramour did not provide her with adequate support. There are those, like the late law professor James G. McLeod, who disagreed with this decision. He took exception to the idea that a woman who had an affair with a married man who lived with his wife may be a ‘spouse.’

While Professor McLeod understood the argument of making an unjustly enriched estate compensate a mistress like in Nowell v. Town Estate, he felt that to suggest that a mistress was a spouse for support purposes takes away whatever meaning is in the word ‘spouse.’

From a Jewish perspective, the idea of having more than one spouse was addressed around the year 1000. Rabbeinu Gershom instituted a halachic edict forbidding men to marry more than one woman, a practice that is permitted by the Torah. The issue is one of intense debate in Canada. For example, the government of British Columbia asked its provincial supreme court to address the criminal prohibition against polygamy. Of concern are the polygamous marriage practices amongst certain North American Muslims and Mormons.

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Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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