In order to fully provide for loved ones, a proper will must be in place. However, when life changes occur, it is equally important to update the will to reflect any alterations to an estate plan. In a recent Ontario decision, the court was faced with a situation in which it had to evict the testator’s live-in partner from their home because she had not been included in his will.
Testator Moves in With Former Flame
In the 1960s, the testator and a woman had a brief romantic relationship that resulted in the birth of a son. However, the relationship ended before the birth and the woman had no further contact with the testator until 2013. When they reconnected, she began living with him in the lower apartment of a property he owned in Toronto.
The testator also had a daughter.
Testator Passes Away
The testator passed away on May 2, 2020 at the age of 84. The woman had lived with him in his apartment until his death and continued to reside there following his death, without paying any rent or utilities.
The testator had a will dated May 12, 2009 which designated his two children as co-estate trustees. The will provided that the residue of his estate be divided 10% to his grandchildren alive at the time of his death and the remaining 90% to his children.
The will made no mention of the woman, who was 91 years old. However, in a video recording a few days before his death, the testator stated that the woman was to receive $50,000 from a life insurance policy. He also stated that his property, “the place where I reside”, was to go to his grandchildren.
Parties Go to Court Over Apartment
The woman alleged that she was the testator’s common-law spouse. In her court application, she sought dependent’s support, unjust enrichment, quantum meruit, constructive trust and proprietary estoppel. She also claimed that the testator had told her she could stay in the apartment for as long as she wanted after he died. The woman stated that the testator’s daughter was in a conflict of interest by opposing her claims for dependent support and quantum meruit and requiring that she vacate the apartment. She characterized the daughter’s actions as “selfish litigation interests”. She thus brought a motion seeking an order appointing an Estate Trustee During Litigation (“ETDL”) for the estate.
The testator’s daughter disputed that the woman’s relationship with the testator was as a spouse. She also disputed her claims in relation to the apartment. The daughter brought a motion seeking an order evicting the woman from the apartment and authorizing her, as estate trustee, to sell the property.
Court Dismisses Woman’s Motion for the Appointment of an ETDL
In response to the woman’s motion for the appointment of an ETDL, the court began by explaining that an ETDL is appropriate where a trustee is in an adversarial position towards a co-trustee or beneficiary.
However, in this case, the court observed that the woman was neither a co-trustee or beneficiary under the will, nor had she challenged the will. At best, if her other claims were successful, the court stated that the woman would be a creditor of the estate.
As such, the court rejected the woman’s motion as being neither appropriate nor necessary.
Court Grants Daughter’s Motion to Evict Woman and Sell Property
In considering the daughter’s motion, the court noted that the apartment had sizeable liabilities and was in need of major repairs. It also took into consideration that the woman had access to another apartment. The court thus concluded:
“In my view, considering both [the woman]’s interests and those of the Estate, I am satisfied in the circumstances that the best course for the Estate is to sell the Property which means that [the woman] must vacate the Apartment. Even assuming a mortgage could be obtained, given the repairs required …, [the woman] would have to move out of the Apartment in any event while the repairs were being done.”
As such, the court granted the daughter’s motion. In the result, the woman would therefore be obligated to move out of the apartment and the daughter was granted the right to sell the property.
Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.
An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.
The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.
At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized. Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.