If you are unhappy with the amount your spouse left you in their will, you may have some legal options, for example:
Option 1: Instead of taking under the will consider electing for "Equalization" if you were married.
Ontario's Family Law Act ("FLA") views marriage as an economic partnership and gives married spouses the option to either
- accept entitlement under their spouse's will
- make an election for equalization of "net family property".
Requirements: be married, no enforceable marriage contract etc.
Deadline: The surviving spouse of a marriage must file for equalization within six (6) months of the death. Otherwise, they may lose out on the opportunity to make this claim.
Option 2: File for a Dependant Support claim
If you qualify as a "dependant" spouse, even if unmarried, you can make a Dependant Support claim under the Succession Law Reform Act. A court can compel the deceased's estate to provide adequate provision of support for you.
Adequate provision for of support is determined by considering many factors, including:
- the surviving spouse's financial circumstances;
- the legal obligations of the deceased;
- the moral obligations of the deceased. When considering moral obligations, the court has often considered society's expectations of what a judicious person would do in the circumstances (Cummings Cummings);
- the dependant's capacity to contribute to their own support;
- the dependant's age, physical and mental health; and
- the length of the relationship
- contributions to the deceased's realization of career potential
Requirements: The surviving spouse would need to prove that the deceased was actually providing support or was under a legal obligation to provide support immediately before their death.
Deadline: It is recommended that the surviving spouse give notice to the estate immediately. The spouse must commence a Court application within six (6) months of the issuance of the Certificate of Appointment of Estate Trustee (the granting of probate).
Remember, the rights of a spouse to equalization of net family property and to Dependant Support are not mutually exclusive. After equalization, a married spouse may still be able to bring a claim for dependant support if they are not provided with adequate provision for proper support.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.