Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make […]
Challenging a prenuptial agreement in the context of estate litigation happens more often than you think. When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, God forbid, the marriage breaks up and/or the wealthy spouse […]
I was invited to speak at a Law Society of Upper Canada CLE seminar that took place on October 30, 2012. It featured many people who I consider some of the best practioners in this area. My paper analyzed whether Justice Cullity, in Banton v. Banton, expanded the test on insane delusions. At the actual […]
In Canada, the law balances the idea of testamentary independence against public policy concerns. Two British Columbia courts have ruled that in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. To date, this issue has not been addressed in Ontario’s courts.
A recent case in Ontario Canada, Proulx v. Kelly, addresses how DNA testing is relevant to estate litigation disputes. When the deceased has not made a will Ontario’s laws of intestacy govern and if there is no spouse the next of kin inherit. With respect to receiving an inheritance under an intestacy, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children.
The question addressed by this article is whether someone can avail himself of an equitable remedy to assert an beneficial ownership interest if the creation of the equitable claim was as a result of an intentional effort to defeat creditors.
In British Columbia disinherited adult children have a strong claim against a parent’s estate based on their moral entitlement to an inheritence. Tataryn was the seminal case in British Columbia which was ultimately decided by the Supreme Court of Canada. The importance of adult children dependent’s moral claim in Tataryn was adopted by the Ontario Court of Appeal. But there is no clear court decision in Ontario suggesting that the moral claims of non dependent children are legally enforcable in Ontario.
The author reviews Ontario’s laws of inheritance in the context of second marriages. He addresses the risk to implementing a person’s testamentary intentions. For example, in Ontario, under certain circumstances a new marriage revokes previous wills, the failure to provide full and frank disclosure may invalidate a domestic contract and a court may still order a deceased’s estate to pay support to a dependant regardless of any agreement made to the contrary.
Can you imagine burying a spouse and then being sued for support by his mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family’s an inheritance is unjust. Others argue that financial obligations should flow from […]
A creditor may enforce a judgment for the payment or recovery of money by garnishment. Garnishment is a procedure whereby moneys owing to the debtor (garnishee) by a third person attach directly to the creditor (garnishor). Garnishment attaches to moneys held in a RRSP. In life, there is little question that RRSP’s vest in the […]