Putting a Cork in Old World Practices


Written on July 26, 2012 – 7:15 am | by Justin de Vries

It is perhaps an all too common scenario; husband dies leaving a surviving wife.  Widow is grief stricken, but quickly learns that her spouse of many years was less than generous in his will.  A case of old world practices being imported into the new world?  The husband’s expectation is that the children will look after their mother.  However, the widow finds herself impoverished and dependent on her children. 

However, the law is a living tree and grows to meet modern sensibilities and practices.   Section 6(1) of the Ontario Family Law Act (“FLA”) states: “When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5 [of the FLA]”.  Section 6(2) of the FLA states: “when a spouse dies intestate [without a will], the surviving spouse shall elect to receive the entitlement under Part II of the Succession Law Reform Act or to receive the entitlement under section 5”.  However, such an election must be made within 6 months of the date of the death.

Section 5 of the FLA calls for the equalization of net family properties such that “…the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them”.  In other words, assuming the widow has no assets, she is entitled to 50% of her husband’s estate by electing under section 6 of the FLA.

Now, let’s throw in a further complication and see how the law does.  The widow is incapable and therefore lacks the capacity to make an election under section 6 of the FLA.  Now what?  If the incapable widow has an attorney for property, the attorney can make an election on the widow’s behalf as long as the power of attorney contains a provision (and most do) that expressly states that it continues after any subsequent incapacity.  An attorney for property has the power to do anything the donor could do (but make a will) and must act at all times in the best interests of the incapable. In other words, the attorney for property, on behalf of the incapable widow, makes the election under section 6 of the FLA.

A further complication: what happens if the incapable widow does not have an attorney for property?  How can she then elect?  A family member, friend, or even the Public Guardian and Trustee must apply to the court to be appointed the incapable widow’s guardian of property.  The guardian would then elect on behalf of the incapable widow.  Obviously, there is some urgency to the guardianship application, as the incapable widow has 6 months from the date of death to make an election. 

In the scenarios above – game, set, match – the law.

Happy Litigating,

Justin

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