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.
A recent Ontario decision highlights the importance of creating a will, after a man without family died without a will.
Man Dies Without Will or Family
The deceased passed away on July 14, 2020. He had no spouse and no children. His parents were also deceased and it appeared that he had no siblings, nieces or nephews.
At his death, the value of his estate was just over $77,000.
Despite having never married, the deceased had lived in a common law relationship with a woman between 1982 and 1988. That woman had two daughters, who also co-habitated with the couple during those six years. The daughters claimed that the deceased had treated them as his stepdaughters and they had remained close following the relationship with their mother.In fact, the deceased had appointed one of the daughters as his attorney under a power of attorney in 2017.
As such, one of the daughters applied to court seeking appointment as estate trustee. She also asked the court to dispense with the posting of a bond.
In Ontario, a bond may be required in certain circumstances, such as where there is no will, and serves as a form of insurance meant to protect the creditors and beneficiaries of the estate from the administration of the estate by the trustee.
The daughters stated that they believed they were the beneficiaries of the deceased’s estate.
Court Dismisses Application
The court began by stating:
“Unfortunately, the deceased did not make a will. It does not appear that the daughters of a partner with whom the deceased ceased to co-habit in 1988 fall within any class of person recognized as an heir on an intestacy pursuant to the Succession Law Reform Act… Letters of Administration cannot be issued to the applicant as next of kin under the Act.”
The court then posited that it could make an order appointing the applicant as administrator of the property of the deceased under s. 29(3) of the Estates Act. Section 29(3) states, in part:
29 (3) Where a person dies wholly intestate as to his or her property… and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased … the court may appoint such person as it thinks fit upon his or her giving such security as it may direct…
However, the court noted that it was unlikely that such an order could be made in the daughter’s circumstances without imposing terms that included the posting of a security bond.
Instead, the court held that, because the Public Guardian and Trustee (“PGT”) had the authority to conduct an investigation to determine if it should be appointed as estate trustee of last resort, it would refer the matter to the PGT for investigation. The court noted that part of the PGT’s investigation includes a search for next of kin.
As a result, the court dismissed the daughter’s motion.
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.