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Moral Obligations and Wills

Paul suffered from Becker’s Muscular Dystrophy. He often fell, had trouble standing up or sitting down and going down stairs was arduous. When his parents divorced, Paul’s father undertook to support him and recognized that this obligation was to survive his death. In his Will, Father left $125,000 trust to care for Paul. The disease was progressively debilitating and the expense for Paul’s care substantially increasing. It was clear that not even Father’s entire estate of $650,000 would be enough to care for Paul. He asked for increased support with a dependant’s relief application under the Succession Law Reform Act . The court considered the morality of giving everything to Paul at the expense of the other beneficiaries.

Paul’s mother and father separated in 1986 and divorced in 1992. The father moved in with Ruta in 1987 and married her in 1996. That year, Father’s income dropped from $300,000 to $12,000. Ruta supported him and Father unilaterally reduced support payments to his first wife and children. Father died in 1997 and his children asked the court to increase Paul’s entitlement to the estate.

Freedom to dispose of property in the way one sees fit is a basic principle of common law. The interference with that right has evolved with governments enacting legislation like the Family Law Act and Succession Law Reform Act. These laws, and the Courts’interpretation of them, reflect society’s view that there are circumstances that warrant changing a Will regardless of the testator’s intention.

Neither Paul’s mother nor Ruta needed to be supported out of the funds of the Estate. A strict reading of the Succession Law Reform Act and only a needs assessment of all the parties involved would have lead to Paul getting the entire estate of $650,000. Does this sound fair? The Court said no. After all, Father’s Estate was worth only $135,000 and the added value of $515,000 came as a result of the Success Law Reform Act’s expanded definition of what was to be included in an Estate when considering a dependant’s support application. This expanded definition caught Father and Ruta’s matrimonial home. Giving everything to Paul ignored Ruta’s living and being married to the deceased and the financial and other contributions she made to their relationship during their time together. Paul’s lump sum payment was raised to $250,000. While this was far less than he needed, the court limited his entitlement out of what it felt was a moral duty to Ruta.

Applying under the Succession Law Reform Act may be the best way to change an unfair will. But, despite the temptation to jump to conclusions, it would be a mistake to substitute this case review for substantive legal advice. For those considering this option, there is no replacement for hiring a competent solicitor whose own research, analysis and judgment should be canvassed prior to going to court.

Cummings v. Cummings, 2004 CarswellOnt 99 (Ont. C.A. )

Toronto Estate Litigator - 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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