Without exaggeration, Estate planners, Family Law practitioners and litigators ignore the relationship between Family Law and Will Challenges at their clients’ peril. Without their lawyers’ understanding of both of these areas of the law, clients are increasingly vulnerable when negotiating domestic contracts, releases, and estate planning. The overlap between Family Law and Estates Law is substantial, and practitioners of each area of law should develop familiarity, if not expertise, in each area of these areas of the law.
Unless their domestic contracts say otherwise, when a spouse dies leaving a Will, the surviving spouse has the option to elect to take their bequests under the Will or to receive the entitlement under the provisions dealing with equalization of net family property. Within six months after the first spouse’s death, the surviving spouse must file his/her election and commence the appropriate application. Otherwise, the surviving spouse is deemed to take under the Will.
A key danger to lawyers drafting domestic contracts are the release provisions which purport to preclude surviving spouses from making claims against the Estate for support. The Succession Law Reform Act specifically provides that courts may make a support order “despite any agreement or waiver to the contrary.” Regardless of any commitment made in a domestic contract, dependants of the Deceased may apply for support from the Deceased’s Estate when the Deceased left them with inadequate provisions to support themselves.
Topics addressed in this seminar will include:
- Drafting and Interpretation of Domestic Contracts
- Dependant’s Relief/Support under the SLRA
- Division of Net Family Property
- Equalization under the Family Law Act
In the Media
This article was published by Law360 Canada, part of Lexis Nexis Canada Inc. on September 15, 2023.