If You Are Separated or Common Law You Need A Will

will and testament

Frank was separated from Claire for 25 years but never got a divorce. He then lived with Angie for 20 years but they did not marry. These days marriage and divorce is less important than it used to be.  That was not a problem until Frank suddenly died. He had no Will and under Ontario law his legal wife Claire got control of his estate as his closest relative. She was also primary beneficiary. His children would share in the estate if the estate was large enough. The children were loyal to their mother Claire. Angie would get nothing if not for the fact that Frank and Angie owned their house jointly and it became Angie’s house.

Frank  had a lawsuit on the go where he was hoping to get money.  On Frank’s death his lawsuit was controlled by Claire and any money recovered for Frank’s estate would go to Claire. The lawsuit was a risky one and its chances were reduced without Frank to give evidence.  Claire chose not to proceed.  She also took the two cars of Frank and Angie as both were registered in Frank’s name.

Angie had some rights and could go to court to enforce them. She could have sued the estate since Claire had no interest in letting her have anything. There was not much beyond the cars that Angie lost and so she was lucky. She chose not to sue and was content to get ownership of the house and a small joint bank account. She also got widow’s benefits from Canada Pension Plan which fully recognizes common law relationships.

This is just one case but it happens often.  Other cases go to court and eventually get sorted out and the court looks at what is fair under the circumstances.  If the house had just been in Frank’s name it likely would have gone to court.  The court would look at Angie’s contribution to the house in money and work.  They would reward her for that and may also find that the house was held in trust by Frank for himself and Angie. She would have done well in court by getting half ownership of the house, which would be sold with half of proceeds going to Claire.

All of this could have been prevented by Frank making a new Will to provide for his spouse Angie. He would be best advised to make a new Will after his separation from Claire and to change it again when Angie became his common law wife.

If you are separated from a marriage, and especially if you are living common law think about making a Will. Joint ownership of property can solve most problems even without a Will and is part of proper estate planning.  Frank had no idea he would die suddenly or the problems it would create. Since everyone will die eventually, and we never know when it will happen, the time to do something is now.

Submitted by Murray H. Miskin,
Miskin Law Offices in Peterborough,

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