(This article uses the male gender pronoun, but it applies equally to female persons.)
In 1978, Ontario passed The Family Law Reform Act, 1978. That Act greatly changed the law governing families in Ontario. That Act, now called Family Law Act, has also affected other areas of law, including the law on Wills.
- FAMILY LAW AFFECTING WILLS
- Suppose a man drafted a Will, providing for his family after his death. Upon his death, his widow found out that he did not provide sufficient legacy for her in his Will. What to do? Within 6 months of her husband’s, the Testator’s, death, under Section 5 of the Family Law Act, the widow can file at the Estate Registrar for Ontario a completed Form 1 – electing to receive her share of the equalization payment (to equalize her assets with her deceased husband’s assets) under the Family Law Act. Within that same 6 months, the widow further has to file at Court an application for an equalization of net family property at the Superior Court of Justice (Ontario) or (in 17 jurisdictions in Ontario) at the Unified Family Court (Ontario). Once the Widow has applied for the equalization of her assets and her deceased husband’s assets, then she loses the legacy given to her under her husband’s Will.
- Before the Widow jumps to sign and complete Form 1 – electing to receive her share of equalization payment, and rush to file it at the Estate Registrar for Ontario’s office, please check to make sure that she will not be receiving life insurance proceeds for the death of her husband. Because, Section 6(6)(a) of the Family Law Act states that any life insurance proceeds paid out to the widow for the death of her husband is counted as part of the assets of the widow for the calculation of the equalization payment. So, if the widow obtain a large life insurance payout (e.g. $200,000) for the death of her husband, she may be better off taking the smaller legacy left to her under the Will (plus the $200,000 insurance policy payout) instead of applying to equalize her assets and her deceased husband’s assets.
III. MATRIMONIAL HOME
- When husband and wife live in a matrimonial home, even if this home is owned by the husband alone, Section 19 of the Family Law Act states the both spouses have an equal right to the possession of this matrimonial home.
- After the husband’s death, the widow no longer has a spouse, therefore her right to the possession of her matrimonial home has been terminated?
- Section 26(2) of the Family Law Act states that, if the widow was occupying this matrimonial home at the time of her husband’s death, then she is entitled to retain possession of the matrimonial home against her deceased husband’s estate, rent free, for sixty days after her husband’s death.
- TESTATOR’S OTHER DEPENDANTS:
- Section 57(1) of the Succession Law Reform Act defines the word “dependant”:
(a) the spouse (including common law spouse) of the deceased,
(Please note the definition of “spouse” in the Family Law Act Part III Support Obligations is different from the definition of “spouse” in the other parts of the Family Law Act. The definition of “spouse” in the Succession Law Reform Act Part V Support of Dependants follows the definition of “spouse” in the Family Law Act Part III Support Obligations. Under this definition, the decease is capable of having more than one spouse at the same time – e.g. a married spouse and a common law spouse, at the same time.)
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
- Section 58(1) of the Succession Law Reform Act states that if the testator has not made adequate provision for the proper support of his dependants or any of them, the dependant may apply to the Superior Court of Justice (Ontario) for the court to order proper support to be paid to the dependant out of the estate of the deceased.
- Suppose the husband dies, and the executor of his Will wants to distribute his estate to the beneficiaries of that estate – then, a lady comes out of the woodwork with a small child, claiming that this child is the love child of the deceased husband – demanding that the executor of the estate pay support out of the estate to this love child!
- At the time of drafting the Will, I ask the testator about all his dependants, and make adequate provisions in his Will to cover his obligations to all his dependants. But, if he does not mention his love child, then I cannot make provisions in his Will to provide support for this love child.
- DOMESTIC CONTRACTS
- Some of the above provisions may be modified by Domestic Contracts entered into by the husband and the wife while the husband was still alive. However, Domestic Contracts are complex – therefore, unfortunately, they cannot be properly discussed in this short article on How Ontario Family Law affects Ontario Wills. They have to be the subject of another article dealing specifically with Domestic Contracts.