Family Law and Wills

Question 1

What does family law and wills deal with?

Answer 1

Rights that arise on marital property statutes and dependant relief statutes

Question 2

Marital property statutes deal with

Answer 2

Division of property

Question 3

Dependant relief claims

Answer 3

Either spousal or child support orders (not meant really to deal with property) - alternative ways to get money if not in will or intestacy doesn’t happen

Question 4

Marital property in ONT

Answer 4

Choose one of 3 options: right of the spouse of the testator to elect (wills), or intestacy, or to forego what they are owed under that area and claim an equalization of the net family property (family law)

Question 5

Marital property in NB

Answer 5

Actually about division of property/ assets. You first must identify what is marital property and make an equal division of that. You can also double-dip; can take under the will, and can claim under

Question 6

When not to do martial property claim in NB

Answer 6

• Situation #1: In a situation of intestacy in NB, don’t make an application under s. 4, b/c in the spouse gets all the marital property under intestacy.
  • Situation #2: Don’t apply under s. 4 if what they’ve been left is more than 50% of the marital property. File a dependent relief claim.
  • Situation #3: Don’t apply under s. 4 if looking to benefit from items that are not deemed marital property, e.g. life insurance. File a dependent relief claim.

Question 7

Payne v Payne

Answer 7

Facts: husband very ill left everything to wife. Before dying she sold house and kept proceeds. She died first and left everything to kids from other marriage.

Ratio: Court ordered unequal division of matrimonial property which it saw as proceeds of sale
-RARE: has to be a lot

Question 8

Marital property vs dependent relief

Answer 8

Division of property is more important and trumps a dependants relief claim

Question 9

NB notion of election?

Answer 9

Don’t have same notion of election, can under both will and family law. Not foregoing will if you bring an action.

Question 10

Courts will honour specific bequests

Answer 10

if will leaves jewelry to some person and it is marital property the court will try to divide marital property so jewelry can go to the intended person

Question 11

Issue with dependant relief claim

Answer 11

Have to balance testamentary freedom with what society thinks your moral obligation is to

Question 12

Spence

Answer 12

Ont CA makes it clear you can do what you want and adult children have no claim- dependant relief claim goes against that

Question 13

Moral obligation

Answer 13

obligation to provide for people who are dependant on us, if we don’t do so in our will the state can make us

Question 14

Dependant Relief Statute provinces

Answer 14

Every province has some kind of DR statute but all different and who counts vary—looking mainly at NB

Question 15

Tataryn v Tataryn Estate

Answer 15

-Shows how to quantify dependant relief claims (BC different in many ways- adult independent children can make claim)

Ratio: not just a needs based assessment there is a legitimate role for moral obligations to play when courts assess these awards

Two norms DRCs are typically made under:

(1) Legal obligation (Obligation the law would impose on a person during their life-if alive they would have to provide under claim)
(2) Moral obligation (Society’s’ reasonable expectations of what a judicious person would do in reference to contemporary community standards- what someone adequate, just and equitable would have done)- if estate big enough adult independent children

Question 16

Dependant relief claims are basically all common law spouses have in provinces where they are:

Answer 16

(a) excluded from marital property legislation and (b) excluded from intestacy

Question 17

Scheme in BC for how conflicting claims should be balanced

Answer 17

(1) where estate permits all claims should be met
(2) Where priorities must be considered legal obligations take precedence over moral obligations
(3) Between moral claims some may be stronger than others court must weigh this

Question 18

Things for court to consider for DRC

Answer 18

• Legitimate concerns of deceased (ex: cut off autonomy of a child that is a drug addict)
• Important changes death makes (dead person no longer needs financial support so don’t tie yourself to support tables)

Question 19

Cummings v Cummings

Answer 19

First case to encode moral obligation

Demonstrated that assessment should not just be made on a needs basis and that moral obligation should be considered as well

Question 20

Dependant child

Answer 20

Either unable to leave parents care due to disability or child in their first/ second degree of post secondary education

Or minor

Question 21

Who is left out of DRC in NB?

Answer 21

Adult independent children in NB are not qualified to make these claims even though it says the spouse or child of deceased

Question 22

Contracts vs DRC

Answer 22

Contracts, provided real and legal, take precedent over DRC claims. Only exception is if in the opinion of the judge the value of property willed away exceeds any consideration given for it.

Question 23

Pro-estate provisions

Answer 23

Not everyone who is a dependant is automatically entitled

Question 24

Johnson v Johnson

Answer 24

NB case- extreme

Facts: everything in his name and she knew nothing about the finances, wife really depended on him. She wasn’t getting much so brought DRC

Ratio: Considering the whole of the evidence she has made a clear case that testator failed both in legal and moral obligations to provide for her. Also a case where court should exervise discretion to order something that reflects contemporary justice.

Question 25

Adult independent children in NB

Answer 25

Adult independent children can apply for these claims in NB like in BC but the case law in NB makes it exceptionally hard for them to succeed. Not like in BC which tends to lead toward, if large estate, that they are child they should get something

Question 26

Currie v Currie

Answer 26

Set out very specific situations for successful independent relief claim coming from moral obligation: (1) disability of adult child (not enough to make dependent but still), (2) an assured expectation on the part of the child (told repeatedly by parent they would be provided for), (3) an implied expectation either from abundance of estate or treatment in their life time.

Based on circumstances at time of testators death