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How long do I have to contest, challenge or dispute a will in Ontario?
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.
What is probate in Ontario? What is probating a will in estate law?
Disclaimer: This article answers the question, “what is probate?” 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.
Losing a loved one is never easy. Amidst the grief and emotional turmoil, the practicalities of handling their affairs can feel overwhelming. And then there’s this term you keep hearing: probate. It seems like everyone is saying you need to go through probate or asking if you have probated the will or gone to probate court. What does that mean? These questions swirl in your mind, adding to the already mounting stress.
You’re not alone in this journey. At Beeksma Law, we understand the confusion and uncertainty that comes with navigating probate after the loss of a loved one. It’s a daunting process, filled with legal complexities and unfamiliar terminology. In this article, we’ll go over what probate means and what is involved in probating an estate.
What is probate?
Probate is the legal process through which the courts officially recognize a will, or in cases where there is no will, appoint someone to handle the deceased’s affairs. This procedure aims to confirm the death of the testator, verify the authenticity of the will, and ensure its validity. It grants the executor or administrator (in the case of an estate without a will) the authority to manage and distribute the deceased’s assets.
Can I avoid probate?
We hear this question all the time: do I really need to go through probate?
In Ontario, probate isn’t always necessary, but we typically recommend it for most estates. You cannot avoid probate simply because the estate is small, there is no real estate, or there is only one beneficiary.
Probate becomes necessary when you need court approval to transfer the assets of the deceased to the estate trustee. This could be to validate the will, choose the executor, or resolve disputes among beneficiaries, especially if some are minors or incapacitated.
However, some estates, like those where all assets easily pass to the surviving spouse or those with minimal assets or debts, may not require probate. For example, couples may jointly hold any bank accounts and real property. Yet, if real estate is involved and doesn’t automatically transfer to the surviving spouse by right of survivorship, probate is usually necessary.
However, here’s the catch: even if everyone agrees and the estate seems straightforward if a financial institution demands probate, you must go through the probate process. While some banks may waive probate for small estates without beneficiary conflicts, this is at their discretion. If they require probate, it’s best to proceed promptly rather than dispute with the financial institution.
How do I apply for probate?
To apply for probate in Ontario, there are several steps you need to follow.
Prepare the probate application
The first step is to prepare the probate application, which involves gathering various documents, including the deceased’s original will, any additional documents related to the will, and proof of death such as a death certificate. Additionally, you’ll need to complete specific court forms required for the probate application.
Determine the value of the estate
Determining the value of the estate is another crucial aspect of the probate application process. This involves assessing the total value of all assets owned by the deceased at the time of death. This would include:
- real property like land and buildings,
- any bank accounts
- personal property such as jewelry, artwork, and furniture.
- life insurance, if there is no beneficiary named
This is important because it will determine how much estate taxes must be paid.
Notify any relevant parties (such as beneficiaries)
Before submitting the probate application to the court, it’s necessary to notify all relevant parties who are entitled to a part of the estate, including estate beneficiaries. You can notify them through email, mail, or courier.
File your probate application
Once the probate application and required court forms are completed, they can be filed with the Superior Court of Justice in the county or district where the deceased lived at the time of death. This can be done in person, by mail, or email.
Pay the estate administration tax
Finally, you must pay the Estate Administration Tax, also known as probate tax, when submitting the probate application. This tax is based on the value of the estate. An administrative bond may also be required – we discussed administrative bonds in this article.
What if the deceased person did not have a will?
First, determine that there truly is no will. We discussed substantial completion here, but to summarize, the courts may consider a finalized will as valid, even if it was not fully executed. If there’s any uncertainty regarding whether the deceased person had a Will, it’s prudent to diligently search for one and document these efforts. It is necessary to demonstrate to the courts that all reasonable measures were taken to locate a will, to no avail.
If there was no will, this process would be more complicated. (In fact, this is one of the most compelling reasons to prepare an estate plan – to avoid additional complications and probate costs.) It will take longer to go through the probate process than if there was a will.
If you are applying to become the estate trustee, you must notify all estate beneficiaries about your intentions and obtain original signed consents from beneficiaries holding a majority interest in estate assets. If there are minor or mentally incompetent beneficiaries, notice of the application must be served to their parent or guardian and to The Children’s Lawyer or Public Guardian and Trustee. A bond is much more likely to be required in this instance.
Receiving a certificate of appointment of estate trustee
Once you have filed the proper documents with the court and have paid the probate fee, you will receive a certificate granting you the authority to administer the estate. You are now permitted to act on behalf of the estate.
Questions about probate? Get in touch with Beeksma Law today!
For all your probate questions and concerns in Ontario, Beeksma Law is here to provide expert guidance and support. With our extensive knowledge and experience in estate law, we can help you navigate the probate process.
Whether you’re preparing a probate application, dealing with complex estate matters, or simply seeking clarity on legal issues, you can trust Beeksma Law to offer personalized assistance tailored to your needs. Don’t hesitate to reach out to our team for reliable counsel and peace of mind during this important time,
Answer to Commonly Asked Questions About Cohabitation Agreements in Ontario
Disclaimer: This article on cohabitation agreements is intended for the purpose of providing information only. It 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 recent years, there’s been a noticeable trend away from traditional marriage, with more couples choosing to live together instead. Whether driven by shifting societal norms, financial considerations, or personal preferences, cohabitation has become increasingly commonplace. However, this shift highlights the importance of protecting individual rights and interests, especially without the legal protections that marriage provides.
In response to this need, many more couples are choosing to enter into cohabitation agreements to navigate their shared living arrangements. These agreements offer clarity and protection, ensuring that both partners’ rights and responsibilities are clearly defined and upheld.
In this article, we’ll delve into the commonly asked questions about cohabitation agreements in Ontario, providing clarity and insight for those embarking on this journey.
1. What is a Cohabitation Agreement?
A cohabitation agreement is a legally binding agreement between the parties. The parties are two individuals who are living together in a romantic relationship but are not married. An agreement between married couples is referred to as a marriage contract. This agreement outlines various aspects of their cohabitation, including property division, financial responsibilities, and support obligations. It serves as a proactive measure to clarify each party’s rights and obligations in the event of a relationship breakdown or separation.
2. What Should I include in a Cohabitation Agreement?
Cohabitation agreements can cover a wide range of topics, depending on the needs and circumstances of the parties involved. That is why we warn against using templates – your agreement should be as unique as your relationship itself. However, your cohabitation agreement may include provisions relating to:
- Division of property: Specifies how assets and debts acquired during the relationship will be divided in the event of a breakup.
- Financial support: Addresses issues related to spousal support or financial assistance in case of separation.
- Property ownership: Clarifies ownership rights and responsibilities regarding jointly owned or shared assets.
- Rights and responsibilities during the relationship: Defines each party’s obligations regarding household expenses, financial contributions, and other matters.
- Dispute resolution: Establishes procedures for resolving disputes that may arise during the cohabitation period or upon separation.
A cohabitation agreement does not include provisions related to child custody or child support.
3. Who Should Consider a Cohabitation Agreement?
Cohabitation agreements are recommended for any couple who intends to live together in a committed relationship without getting married. Whether you’re purchasing property together, sharing financial resources, or simply want to protect your individual interests, a cohabitation agreement can provide peace of mind and clarity for both parties. It’s especially important for individuals with significant assets or children from previous relationships to safeguard their interests through a formalized agreement.
Unlike married spouses, unmarried partners are not covered by the property division provisions of the Family Law Act in Ontario. This means that if unmarried couples separate, they don’t automatically have a legal right to divide property acquired during the relationship. Instead, property rights and any agreements between partners determine how assets are divided. Without clear documentation, property disputes can become complicated. That’s why it’s important for unmarried couples to consider creating a cohabitation agreement. This agreement helps outline property division and other important issues, ensuring fairness and clarity for both parties.
4. Are Cohabitation Agreements Legally Binding in Ontario?
Yes, cohabitation agreements are legally binding in Ontario, provided they meet certain criteria outlined in the province’s Family Law Act. To be enforceable, the agreement must be in writing, signed by both parties, and witnessed. It should also be entered into voluntarily, without coercion or duress. Additionally, each party should fully disclose their financial information and seek independent legal advice before signing the agreement.
5. Can a Cohabitation Agreement Be Challenged in Court?
While cohabitation agreements are generally enforceable in Ontario, they may be subject to challenge under certain circumstances. If one party alleges that the agreement was signed under duress, coercion, or without full disclosure of assets, a court may invalidate all or part of the agreement. Similarly, if the terms of the agreement are found to be unconscionable or unfair at the time of signing, a court may refuse to enforce those provisions.
This is why it is advisable to seek legal advice before you sign a cohabitation agreement. This way, you can protect your interests by ensuring you and your common-law spouse have a clear plan if the relationship ends. It is certainly in your best interests to avoid a complex court battle.
6. What Happens If We Decide to Get Married?
If a couple who is in a common law relationship decides to get married, the agreement may be converted into a marriage contract or prenuptial agreement. Alternatively, they may choose to draft a new agreement that reflects their changed marital status and intentions. It’s important to review and update any existing agreements to ensure they remain valid and enforceable in light of changing circumstances.
7. How Do I Get Started with a Cohabitation Agreement?
Creating a cohabitation agreement involves several steps, starting with open communication and mutual understanding between you and your common law partner.
It’s best if each party receives independent legal advice from a qualified lawyer, although it is not required. The lawyer can assist in drafting the agreement, ensuring that it complies with Ontario’s legal requirements and adequately protects the interests of both parties. Once the agreement is finalized, it should be signed, witnessed, and kept in a safe place for future reference.
If you’re considering cohabitation or already living with your partner, Beeksma Law is here to assist you in preparing a cohabitation agreement tailored to your specific needs and circumstances. With our expertise and dedication to client satisfaction, you can trust us to guide you through the process with professionalism and care. Get in touch with us today to ensure that your rights and interests are protected as you embark on this new chapter of your relationship.
When does a Power of Attorney in Ontario take effect?
Disclaimer: This article on how to invoke a power of attorney in Ontario is intended for the purpose of providing information only. It 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.
We have discussed the importance of drafting powers of attorney as part of your estate planning process. A power of attorney documents your wishes related to your personal care and your finances if you do not have the capacity to make those choices for yourself.
However, when does your power of attorney take effect? This article will answer that question and other commonly asked questions relating to powers of attorney.
Each family and situation is unique, as are the choices you must make in your estate planning. We help families just like yours with these decisions every single day. Book your complimentary consultation with our team to learn more.
What is a Power of Attorney (POA)?
A Power of Attorney is a legal document. It gives someone you trust, the “attorney,” the legal authority to make decisions on your behalf if you become mentally incapable. Appointing an attorney to manage your affairs is no small matter. You must trust this person quite a bit – after all, they can make decisions regarding your finances or personal care wishes.
The Different Types of Power of Attorney
There are two types of Power of Attorney: Property and Personal Care.
Power of Attorney for Personal Care
This type of POA pertains to health and personal care decisions. It authorizes someone (the attorney) to make choices regarding medical treatment, long-term care, housing, and overall well-being when the grantor cannot. It includes decisions about going into long-term care, accepting or refusing treatment and other important decisions.
Power of Attorney for Property
In contrast, the Power of Attorney for Property delegates authority over financial matters, including bank accounts, real estate, investments, and other financial affairs. Your attorney would act as you in making financial decisions, such as managing bank accounts, buying or selling property, investing assets, paying bills, and handling day-to-day financial transactions.
How to Make a Power of Attorney in Ontario Take Effect
Power of Attorney for Personal Care
A Power of Attorney for Personal Care will only take effect when the grantor is incapable of making decisions themselves.
Who determines if the grantor has become incapable or cannot make their own decisions? That depends on the wording of your Power of Attorney.
In some instances, the attorney can make that determination themselves. In other cases, you may need to arrange for a capacity assessment. It may be that your power of attorney requires that the grantor’s incapacity be proven before it comes into effect. You may also need to have one completed before moving your loved one into long-term care.
We discuss capacity assessments in detail here, but capacity assessors are a distinct group of health professionals qualified to determine whether or not you can make your own decisions and understand the impacts of those decisions relating to your care.
Power of Attorney for Property
A Power of Attorney for Property is also sometimes called a Continuing Power of Attorney because it can take effect immediately unless you state otherwise. That means your attorney can use the power of attorney at any time – whether you need them to or not! You can also include language that your attorney can only make decisions once you are mentally incapable.
Carefully consider how you want to word your power of attorney. On one hand, it can be wise to set up a safeguard to how and when someone can use a power of attorney. On the other hand, obtaining a capacity assessment takes time, meaning your attorney must wait to exercise their authority. This means that there may be a delay in being able to pay bills or handle other important matters.
Additionally, some financial institutions may require a capacity assessment before your attorney for property can do anything, even with a valid power of attorney in place.
Can I revoke my power of attorney?
Yes, you can revoke or cancel your power of attorney. You can revoke a power of attorney by:
- creating a new power of attorney; or
- creating a written declaration, known as a “revocation” or a Notice of Revocation.
It’s best to speak with a lawyer to ensure it complies with Ontario’s estate law.
I have been appointed an attorney but cannot fulfill the role. Now what?
Yes, you can resign as a power of attorney if you are unable or unwilling to fulfill the duties effectively. Acting as an attorney is an important role. Therefore, it is wise to consider carefully whether you are up to the challenge. We discuss some of the nuances in this article, but it may be as simple as a written statement formally resigning.
What if there is no power of attorney?
If you do not have a power of attorney, your family can go to court and have the court appoint someone as your attorney. If you do not have someone willing or able to take on this responsibility, the Office of the Public Guardian and Trustee may become involved.
It is much better to prepare ahead of time and appoint someone in advance. If not, someone may make decisions regarding your healthcare, property and finances that do not align with your wishes.
Preparing your Wills and Power of Attorney with Beeksma Law
At Beeksma Law, we understand the significance of meticulous legal planning. Our team specializes in guiding individuals through creating Wills and Powers of Attorney tailored to their needs, ensuring clarity and compliance with Ontario laws.
Seeking legal advice when establishing one ensures that your wishes are accurately documented and safeguarded. Let us help you give your family the greatest gift of all – peace of mind. Contact us today to begin.
How will you handle unique assets in your estate plan?
Disclaimer: This article on estate planning and unique assets is intended for the purpose of providing information only. It 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.
As part of our estate planning checklist, we ask you to take some time to consider any significant assets. For many Canadians, they think about their homes, their vehicles, life insurance policies, investment accounts and other items.
However, what about your online assets? Have you considered other things close to your heart, such as your collections or even your pets?
To create a comprehensive estate plan, you’ll want to consider how these items impact the value of the estate. It can affect your estate tax planning and impact how your assets are distributed.
This article will discuss some unique assets and how you can best communicate your wishes regarding these items.
Digital Assets
Digital assets are a relatively new area to consider in estate law; however, the reality is that many of us own intangible assets. This can include cryptocurrencies, websites, online accounts and even your travel miles! These are part of your estate and should be considered in your estate planning documents.
Not only should you consider an inventory of these assets, but consider how your estate trustee will be able to access them. While you can consider providing passwords or access to an online password manager (such as LastPass), do not include it in your will. Your will becomes part of the public record during the probate process. Certainly, that would create a serious security risk!
Collections
Collections often hold either sentimental or financial value. Whether it’s rare coins, comic books, or even items like high-end sneakers, their unique nature demands specific attention in an estate plan.
The more information you can give your beneficiaries about your collection, the better. Ideally, you should have a catalogue of your collection that includes its appraised value. It would be a separate document referenced in your will, and it would be wise to update it regularly.
Since a collection is many items, knowing where they are stored will help your executor locate and distribute them.
This is one area where you will want to discuss your plans with your family. Your collection may reflect a shared passion or has sentimental value to specific members. Openly communicating your intentions regarding the collection can prevent misunderstandings or conflicts among your beneficiaries.
Art:
Art is a unique part of estate planning, blending personal expression and financial value. Handling art in your estate plan involves detailed cataloging, verifying authenticity, and documenting its history. This comprehensive record, including descriptions and authenticity certificates, helps everyone involved understand your art collection.
Deciding what happens to your art—whether donated, sold, or passed down—requires clear instructions. Legal aspects like taxes and copyrights add complexity, so it is best to speak with your lawyer and financial advisor. By addressing these elements thoughtfully, your art can maintain its worth and significance for future generations.
Pets:
Pets are cherished family members, and their well-being after one’s passing is a concern for many. However, under the law, they are simply property. We dedicated an entire article to considering your pets in your estate plan, but you have many options, including creating a trust.
When it comes to your pets, you will also want to include them in your power of attorney for property. In that case, someone can make important decisions on your behalf if you are unable to manage your affairs.
Gifting Assets to Non-Resident Beneficiaries
While you may not be gifting a unique asset, distributing assets to non-resident beneficiaries adds complexity. Some objects cannot be exported from Canada without a permit under the Canadian Cultural Property Export and Import Act (Canada). The Act contains a comprehensive list, which includes “objects of applied and decorative art” and “musical instruments.”
It is worth speaking to your estate lawyer about any such objects to determine if your beneficiary designations require such a permit.
Begin the Estate Planning Process with Beeksma Law
As they say, if you fail to plan, you plan to fail, and at Beeksma Law, we want nothing but success for you. A good estate plan can give peace of mind to you, your family members and other beneficiaries. It can also help you lower your estate’s tax bill and assure you that your wishes are carried out.
Don’t leave your legacy to chance – make Beeksma Law part of your estate plan today. Our team focuses on estate law and has helped many families avoid common estate planning mistakes. Take the first step today by booking a complimentary consultation. Let us assist you in crafting a comprehensive estate plan that reflects your wishes and secures your family’s future.