The subject of making a will can be a sensitive one for many people.
The words ‘last will and testament’ can engender fear in some that it will hasten their demise which, of course, is not true.
In fact, the word ‘last’ does not necessarily mean final as one can alter or replace a will at any time.
In my last article, I covered the various aspects of making a valid will, and this week I will deal with the various legal entitlements that related parties may have to your estate when you have passed on – whether or not you have made a will.
Under the
Family Law Act, if a person standing in the
place of a parent separates from that child s parent, the child
can apply for support from that person.
3 A child support
order made while the person was alive usually binds the estate of
the person, meaning the child will continue to receive support if
that person dies.
4 However, if a person is standing
in the place of a parent to a child at the time that person dies,
that child is currently unable to apply for support from their
step-parent s estate.
This gap in the legislation does not reflect the prevalence of
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Family Law Act in defining who are
“parents” and “children”. However,
the
Wills and Succession Act does not adapt the
expanded definition of “parent” found in Part 3 of
the
Family Law Act, which recognizes that a person
may “stand in the place of a parent” for support
purposes. To be standing in the place of a parent, a person must
meet two conditions:
they must be a spouse or partner of the child s parent
(i.e. a step-parent) and
they also must have “demonstrated a settled intention to
treat the child as the person s own
child.”
1
There are several factors a court considers when
Keith Masterman
A will is a cornerstone of an estate plan, and careful planning is required before drafting one. During that planning process, it’s important to consider any restraint on testamentary freedom. Restraints may be legislative, based on public policy or a result of contractual duties.
Legislative restraint
An example of legislative restraint is Ontario’s Family Law Act, which allows a surviving spouse to choose between the benefits left in the deceased’s will or a right to a family property division, which would’ve been available had the marriage ended in divorce or separation.
Another example is British Columbia’s Wills, Estates and Succession Act, which allows a court to vary a will if, in the court’s opinion, the will doesn’t adequately provide for the deceased’s spouse or children.