Tuesday, July 25, 2006
Limits to testamentary freedom
We often are told and many of us believe, that we can write a will to include, or not include, whomever we want. However, the more complex society becomes, the less true that testamentary freedom is complete.
In Ontario atleast, and in other parts of the world, there are some restrictions on testamentary freedom.
For instance, if a testator does not provide for the support of his dependants in his or her last will and testament, a dependant may bring an application for dependant's relief pusuant to Part V of the Succession Law Reform Act. A judge will have broad power on such an application to provide for the support of true dependants as defined in the Act. The judge can set aside property and transfer property. A Judge may make an Order for interim and final support. The support may be periodic or in lump sum. Certain assets (such as RRSP's, pensions and life insurance policies where there is a named beneficiary) will be included as assets available to satisfy the dependant's support.
In addition, if a married testator does not adequately provide for a surviving spouse, the surviving spouse may bring an application against the estate of a deceased spouse - the same right that he or she would have on separation.
In addition, estates are continually under attack by claims made based in quantum meruit, constructive trust and resulting trust.
So, when you plan you estate, take into account your dependants - or those whom the law may deem to be you dependant, before you exclude them or undervalue them. This will perhaps avoid costly litigation to your estate after you are no longer here.
In Ontario atleast, and in other parts of the world, there are some restrictions on testamentary freedom.
For instance, if a testator does not provide for the support of his dependants in his or her last will and testament, a dependant may bring an application for dependant's relief pusuant to Part V of the Succession Law Reform Act. A judge will have broad power on such an application to provide for the support of true dependants as defined in the Act. The judge can set aside property and transfer property. A Judge may make an Order for interim and final support. The support may be periodic or in lump sum. Certain assets (such as RRSP's, pensions and life insurance policies where there is a named beneficiary) will be included as assets available to satisfy the dependant's support.
In addition, if a married testator does not adequately provide for a surviving spouse, the surviving spouse may bring an application against the estate of a deceased spouse - the same right that he or she would have on separation.
In addition, estates are continually under attack by claims made based in quantum meruit, constructive trust and resulting trust.
So, when you plan you estate, take into account your dependants - or those whom the law may deem to be you dependant, before you exclude them or undervalue them. This will perhaps avoid costly litigation to your estate after you are no longer here.
posted by Robert at 2:54 PM
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