March, 2024

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What is a Dependant Support Claim? What support obligations should you consider in your estate planning?

hand holding providing comfort to someone illustrating a dependant support claim ontario

Disclaimer: This article discusses estate planning.  It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

It is well-established in common law that you have the right to leave your estate to whomever you would like. This is referred to as “testamentary freedom.” 

However, this concept has a few exceptions – one of which is found in Section V of the Succession Law Reform Act. There, the law obligates you to ensure that you have adequately supported your dependants. 

Of course, this raises questions. Who are your dependants? If your relative has not provided adequately for you, do you have any recourse? What do you need to keep in mind? 

These are questions that this article will answer. Of course, each situation is unique, and this article aims to provide a broad overview. If you would like to discuss your estate or that of your loved one, we encourage you to book a call with our team. We would be more than happy to discuss this further during your complimentary consultation. 

What is a dependant support claim? 

A dependant support claim is an application brought against a deceased person’s estate to ensure continued support is provided.

In Ontario, the law ensures that specific people dependent on someone who has passed away have the right to seek support from that person’s estate, regardless of any inheritance they might receive through a will or intestacy laws. This means that dependants, such as spouses or children, can bring a claim for support separate from whatever they may inherit. If successful, the estate must prioritize fulfilling this support payment before distributing any remaining assets to other beneficiaries.

Who would qualify as a dependant? 

Section 57 of the Succession Law Reform Act sets out a two-part test to determine who qualifies as a dependant. 

Are you a dependant under section 57 of the Succession Law Reform Act? 

For the purpose of a dependant support claim, a dependant must be a spouse, parent, child or sibling. While that sounds simple enough, the law has some nuances that you should know. 

Additionally, in this scenario, spouses are not limited to married people. They also include common-law spouses, meaning two individuals who have cohabited for at least three years or are a child’s natural or adoptive parents. The court may consider a grandparent or grandchild equal to a child or a parent if the deceased demonstrated that they intended to treat that person as a child or parent of their family.  

Was the deceased providing (or legally obligated to provide) support immediately before their death? 

Secondly, the deceased must have been providing support (or should have been providing that support) immediately before their death. It may be that the deceased had a legal obligation to provide support, whether by an order for support or a domestic agreement. There may also be a moral obligation – meaning that a reasonable person would provide adequate provision and support in similar circumstances. 

For example, in the case of a minor child, a parent would have either been supporting their child or legally obligated to provide some level of support. Another example may be an ex-spouse who was receiving spousal support when the deceased passed away. The estate is responsible for providing that support as it would if the deceased were still alive.  The case law shows that the courts consider “support” to include financial, physical and moral support. 

How long do I have to bring a claim for support?

While we noted that the statute of limitations in other litigation matters is generally two years, Section 61 notes that an application must be brought within six months from the grant of letters probate of the will or letters of administration. 

Plainly speaking, this means you have six months from when the Certificate of Appointment of Estate Trustee is issued to bring an application forward. 

How does this impact your estate planning? 

Understanding the potential for dependant support claims is crucial when crafting a solid will.

Let’s use a hypothetical scenario: Joel is a divorced father of two children, Grayson and Rhys, who live in Ontario. Following his divorce, Joel and his ex-wife established a court-ordered child support agreement to ensure financial support for their children.

In preparing his will, we aim to draft it to minimize the likelihood of a dependant support claim being filed. It would be an understatement to say that no one wants Joel’s estate mired in litigation. Therefore, we would work to prevent such outcomes as much as possible while drafting his will.

That may include thoroughly reviewing Joel’s existing legal agreements, particularly the court-ordered child support arrangements, to fully grasp his current financial commitments towards his children. 

By gaining clarity on these obligations, we can tailor Joel’s will to align with his familial responsibilities and minimize the potential for disputes or dependant support claims in the future.

Beeksma Law: Strategic advice for all of your estate litigation needs  

At Beeksma Law, we specialize in handling various estate litigation matters, including dependant support claims. With our extensive experience and expertise in estate law, we can assist you in navigating complex legal processes and ensuring your estate plan reflects your wishes while minimizing the potential for disputes. For strategic legal advice, book a complimentary consultation with our team today! 

Understanding Certificates of Pending Litigation & Ontario Estate Law

A hand holding keys in front of a house showing the importance of a certificate of pending litigation

Disclaimer: This article discusses estate law.  It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

One of the largest assets in many people’s estates is their real property – whether that’s their primary residence, a vacation home or something else. 

What happens if there is a dispute about the property? Perhaps you believe you’re entitled to the entire property, while another beneficiary argues that it should be sold and the proceeds divided among the heirs.

How can you protect your rights to the property? A certificate of pending litigation can help. 

This article will review what it is (we talked about it in more detail here), as well as some of the risks of seeking this remedy. 

What is a Certificate of Pending Litigation? 

A certificate of pending litigation is an official document issued by a court and recorded on title. It signals that there’s a claim tied to the property in question. We would apply for a certificate of pending litigation if we wanted to stop any transactions involving the land, like selling or mortgaging it. 

Why seek a CPL?

There are a few reasons why someone may want to register a CPL against a piece of property.

However, in estate law, they are most commonly used to protect estate assets from being sold when there is a disagreement over the estate. For example, let’s say there’s a dispute among the heirs of an estate over who should inherit a valuable piece of property, like a family home. One heir believes they’re entitled to the entire property, while another heir argues they should sell the property and split the proceeds.

To prevent the property from being sold off before the dispute is settled, the heir who wants to keep the property intact can apply for a CPL. Once granted, the CPL would be registered against the property’s title, effectively preventing it from being sold or transferred until the dispute is resolved in court.

In this way, the CPL serves to safeguard the estate’s assets, ensuring they remain intact until a fair resolution is reached among the disputing parties or by the court.

Can I apply for a CPL? 

In order to obtain a CPL, you do need to successfully answer these questions. 

Do you have a triable interest in the land? 

If you are the party seeking the CPL, you must prove that you have a triable interest in the property. What does “an interest in the property” mean? It is a low threshold. Basically, it’s just showing that you have some connection to the property or a claim to it and that you have a triable issue. The court has no interest in determining whether your claim is likely to succeed, just that a triable issue exists. 

Could you be adequately protected by another form of recourse or remedy? 

When deciding whether to grant a CPL, the courts will then consider if an equitable form of security would be more appropriate. For example, if putting a lien on the property or using some other type of legal protection could work just as effectively, they might prefer that option. 

There are a number of factors that the court will look at, such as whether the land is unique, whether damages could be calculated, or if there are any alternative remedies.  

The potential risks of registering a CPL

The courts have consistently viewed Certificates of Pending litigation as a tool for estate litigation. However, if you make a motion to have one registered on title, it is not guaranteed that the courts will grant it. 

The Courts of Justice Act notes that if someone registers a CPL without a reasonable claim to the property, they can be held responsible for any resulting damages.

For example, registering a CPL could hinder the sale of a property because potential buyers are unlikely to want a property tied up in legal disputes. In such a case, the owner of the property may seek compensation for the lost sale proceeds. 

It’s crucial to use the CPL as a tool to safeguard your legitimate rights rather than as a tactic to unfairly disrupt transactions.

Obtaining a CPL without giving notice

Justice Kurz’s recent ruling in McNeil v. Kaloustian highlights the risks of obtaining a Certificate of Pending Litigation (CPL) without informing the other party. Some CPL applications are urgent or involve fraud, so they’re pursued without notifying the other party.

Rule 39.01(6) requires the party seeking a CPL without notice to fully and fairly disclose all relevant facts. Failing to meet this requirement can lead to the order being overturned, regardless of the CPL request’s merits. In McNeil, Justice Kurz stressed the importance of transparency and adherence to legal duties. 

Despite the plaintiff’s right to seek the CPL without notice, their failure to fulfill their duty of candor resulted in the CPL’s cancellation. This ruling emphasizes that parties seeking CPLs without notice must meet high standards, as preserving fairness in legal proceedings is crucial.

The point? Just because you can do something does not mean you should. 

Contact Us to Protect Your Rights

If you need legal assistance with CPLs or any estate-related matters, Beeksma Law is here to help. 

Our experienced team of lawyers can guide you through the complexities of CPL applications, ensuring your rights are protected and the legal process is fair. Contact us today for expert advice and representation.

Estate planning and artificial intelligence (AI): Can I use ChatGPT to Write My Will and other legal documents?

can chatGPT write a will

Disclaimer: This article discusses estate planning.  It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

It seems that you cannot go anywhere without hearing about ChatGPT. From news articles to social media discussions, this groundbreaking artificial intelligence (AI) tool has captured the attention of individuals across various industries. 

Developed by OpenAI, ChatGPT advances natural language processing, allowing users to interact with AI-generated text in a remarkably human-like manner.

With its widespread popularity, many have considered its potential applications, including its use in drafting legal documents such as wills. This article will examine the limitations and legal considerations associated with using ChatGPT to write your will.

Can I use artificial intelligence to draft my will? 

Yes. Technically, it will spit out a valid last will and testament. 

Should I use ChatGPT to write my will? 

Now, there’s a better question.

So, we asked ChatGPT for its opinion.

It said: “While I can certainly assist you in drafting a will based on the information you provide, it’s important to consult with a legal professional or estate planning attorney to ensure that your will conforms to all legal requirements and reflects your specific wishes accurately. Writing a will is a serious legal matter, and it’s essential to have expert guidance to ensure that your wishes are carried out properly and that your will is legally valid in your jurisdiction. If you have any further questions or concerns about the will drafting process, please feel free to ask.” 

We agree. While typing a prompt into a program like ChatGPT would be much easier, it cannot give legal advice or apply complex legal principles like an experienced legal professional can. 

The problems with generative AI

While AI models like ChatGPT may potentially replace some aspects of legal work, they cannot fully replace human lawyers in all scenarios.

ChatGPT can be inaccurate. 

One of the main concerns with using generative AI, such as ChatGPT and other chatbots, for legal documents is the potential for inaccuracies.

ChatGPT 3.5, for example, says that it has been trained on vast amounts of data, but only data up to January 2022. It does not reflect the latest legal updates and understandings of how the courts handle different legal matters. 

In other instances, ChatGPT can also give completely wrong information. A lawyer in British Columbia found that out the hard way. She filed an application that referenced two cases found to be entirely fictitious. As it turned out, they were fabricated by ChatGPT.

The point is that any information produced by ChatGPT needs to be checked very carefully to ensure its accuracy.  

ChatGPT does not ask you questions. 

Part of our process when preparing your will is asking several questions to understand your final wishes. We want to understand your family dynamics, financial situation, and any specific concerns you may have.

However, ChatGPT is simply an AI language model. It cannot engage in meaningful dialogue, ask clarifying questions, or know what information to look for to get details about your unique circumstances. This means that using AI will give you a generic document. It may be legally binding but will not reflect your wishes. 

Because of this, your final documents can have serious oversights or omissions, as important details may not be fully considered or addressed.

For example, when creating a will or trust, we typically ask probing questions to ensure that all aspects of your estate documents are adequately addressed, including beneficiary designations, potential conflicts among family members, and tax considerations. 

ChatGPT does not consider tax implications. 

Another significant part of our process is considering the tax implications for your estate. This can greatly impact how your assets are distributed and what you can leave behind for your beneficiaries.

A qualified solicitor, working in tandem with your financial planner or another financial professional, would carefully evaluate your financial situation and goals to develop strategies to lower your estate’s tax bill. By coordinating with these professionals, your attorney can create legally compliant documents that reflect your wishes and integrate seamlessly with your financial strategy.

The legal risks of AI-generated legal writing  

As we can see, tools like ChatGPT leave you open to many legal risks.

A poorly written will that lacks clarity may be challenged by your beneficiaries. Because your wishes were unclear, they could tie up your estate in litigation for years. This delays the distribution of your assets and creates unnecessary stress and financial burden for your loved ones.

Your estate could face an unnecessarily high tax bill because those implications were not considered. Without careful planning and attention to tax implications, your estate may be subject to avoidable taxes, reducing the amount available for distribution to your beneficiaries. This oversight can significantly impact the financial well-being of your loved ones and undermine your intended legacy.

Finally, it could create documents that are not even valid. Legal documents generated by AI may lack the necessary legal language or fail to meet Ontario’s formal requirements for wills. If that is the only will available and deemed invalid, your assets may become subject to intestacy laws. 

Although ChatGPT can help you streamline your estate planning process, it is a clear case of pennywise and pound foolish. The implications can have a serious negative impact on your estate and your loved ones.

Beeksma Law: Providing Strategic Estate Planning 

While the possibilities of AI technology within the legal industry are interesting, we must recognize the value of personalized, strategic legal guidance from experienced professionals. When it comes to your wills and estates, nothing can replace human intelligence, and the risks are too great to leave to chance. You need a qualified legal professional to provide the expertise and support you need. 

At Beekma Law, our law firm has a proven track record of excellence in estate planning. Our team of qualified attorneys focuses on estate law and can appreciate the nuances of this area of law. Notice how one of our clients felt after we prepared her family’s wills: 

They made it really straightforward to know what decisions we needed to make, guidance on what to do and were always available and willing to answer any of our questions.

We feel so much better now, knowing that if anything happens, our son is protected. Hopefully we don’t have to use them anytime soon, but it’s nice to have that peace of mind that we have proper documents in place.

If you need to create your wills and powers of attorney, contact our team today!  We are happy to use our legal expertise to help you and your family.

How long do I have to contest, challenge or dispute a will in Ontario?

couple with lawyer discussing how long do you have to contest a will

Disclaimer: This article discusses wills.  It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

In the wake of your grief, a legal battle may be the furthest thing from your mind. However, as time passes, you may begin to feel that you have legitimate grounds to challenge or contest a will. Can you still do so? Or is it too late?

How long do I have to contest a will in Ontario? 

In Ontario, as in most other provinces, there’s typically a two-year limit to file a complaint, governed by the Limitations Act. This is the same limitation period that applies to other litigation. 

However, the important thing to note is that this period doesn’t begin from the date of the individual’s death. Instead, it starts from the date when reasonable grounds for contesting the will were uncovered. This often coincides with when individuals become aware of the will’s contents and its implications. (Although we’ll see how this was handled by a recent court decision). 

If, years later, you uncover that the executor intentionally withheld information or acted dishonestly regarding the will, you still have the opportunity to challenge it within two years of discovering this information.

Recent estate case law: Shannon v. Hrabovsky

While it seems pretty straightforward, the question arises, when does the two-year period begin? 

This was the question raised by Shannon v. Hrabovsky

The testator (Andrew Hrabovsky) had prepared various wills in his lifetime. The most recent one – prepared in 2007 – disinherited his daughter, Gayle Shannon. This was the last will that Andrew prepared before he died in November 2014. While Gayle learned of the existence of the will on December 14, 2014, she did not receive a copy of the will until January 2015. 

Gayle contested the will on December 23, 2016. The estate opposed her challenge, stating that she had filed it more than two years after her father’s death. 

The question before the courts: when did the limitation period begin? Did it start when Gayle learned of the existence of the will on December 14, 2015, or in January 2015, when she actually received a copy of the will? 

The courts discussed section 5 of the Limitations Act, which states that the limitation period begins when the party bringing forward a claim ought to have known the nature of their loss. While Gayle knew that the 2007 will existed in December 2014, the courts ruled that she did not know the nature of the loss until she received the will in January 2015. It referred to the principle set out by the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31 – that “the degree of knowledge needed to discover a claim is more than mere suspicion or speculation.”  

Therefore, Gayle did bring her application within the two-year time period allowed. 

Common grounds for contesting a will in Canada

Claims can be brought by a beneficiary, a dependent or someone else with a financial interest in the estate. However, it is not enough to simply be unhappy with your inheritance as grounds for challenging the validity of a will. There are specific legitimate claims to challenge a will in Canada. We discussed it in detail here, but let’s summarize the two most common reasons that a will may be found to be invalid. 

Undue influence

Undue influence happens when someone manipulates, pressures or tricks (unduly influences) a person into making unfair decisions about their will. We see this most often with elderly individuals living alone. The court may consider factors such as unequal relationships with influencers, such as caregivers. If you think this happened, challenging the will in court might be the right step.

Lack of testamentary capacity (mental capacity)  

If someone making a will doesn’t fully understand what they’re signing or how it affects their beneficiaries due to their mental capacity, the will’s validity may be questioned. An interested party can challenge a will if the person making the will (the testator) could not grasp what they were signing, what it meant for their beneficiaries, or how others might interpret it at the time of signing.

Beeksma Law: Your estate lawyer for all of your estate law needs

For all wills and estates matters, contact our team at Beeksma Law for legal advice. 

Whether you’re contesting a will, facing a challenge as an estate trustee, or in need of crafting an estate plan, our expertise can provide valuable guidance. Beeksma Law’s experienced estate litigation lawyers understand the complexities of Ontario’s laws and can assist with filing notices, understanding grounds for challenges, and navigating legal proceedings. 

From preparing a will to probate to providing the validity of a will, consulting our team at Beeksma Law can provide clarity on your legal rights and options. We can advise on the potential legal costs involved and the burden of proof required.

With our assistance, you can better understand your position, protect your interests, and ensure your loved one’s estate is properly administered. Contact us today to get started.