The Canadian Bar Insurance Association
Estates & Wills & Trusts, Family

Lawyers play key role in helping common law spouses with wills

When it comes to drafting a will and estate plan, common law couples can bring unique challenges to the table, Ottawa family law and estate lawyer Timothy N. Sullivan writes in The Lawyer’s Daily.

Sullivan, principal of SullivanLaw, says the number of common law couples in Canada has grown in the last 10 years and many people in these relationships are surprised to learn that when one spouse dies intestate, they are not accorded the same rights as if they were married.

“In Ontario, for example, a widowed, married spouse receives a $200,000 preferential share and, as closest relative, the likely appointment as an estate trustee — none of which applies to a common law partner,” writes Sullivan.

As such, says Sullivan, it is important for lawyers to anticipate, explain and address the estate-planning challenges facing common law couples to ensure as little misunderstanding and conflict as possible.

The first, and possibly most difficult challenge for lawyers in this regard, he says, is ensuring that common law couples understand exactly why it’s so important they make wills.

“Research suggests that common law couples don’t think of their relationships in the same ‘till death do us part’ way that married couples often do. This may mean that one of the partners just isn’t as invested or engaged in the process of will and estate planning — and that can be a huge obstacle to completion,” he writes.

However, Sullivan says, many common law couples come to the relationship with children, ex-spouses, assets or obligations, which can complicate the process of drafting a will or estate plan. While a new marriage will revoke a previous will, a new common law relationship does not.

For example, he writes, in one recent case, the Ontario Court of Appeal found that insurance policies used to “secure” support obligations for a child of a previous marriage could be clawed back into an estate for the purposes of support of a child from a subsequent common law relationship.

“The Court of Appeal overturned that, saying that the new mother of the deceased's child was not viewed as a creditor of the estate in order to overcome the presumptions in the law. While this was considered a ‘good’ decision in terms of the law, it reinforces the need for common law partners to have wills and an estate plan in place, especially when there are children involved,” writes Sullivan.

Another important, often overlooked, issue when dealing with common law partners is the emotional baggage that some of their “old life” can bring with them, says Sullivan, which can include tensions around previous children, child support obligations to ex-spouses and the difficulties with blended families.

As such, he says, there are three things a lawyer can do to best help clients in this situation — the first is to communicate clearly.

“Communication needs to be two-way. Lawyers must not only ensure their clients understand the importance of a will and proper estate planning; they also have to ensure that their clients are asked — and are comfortable answering — the right questions so that no details are missed,” he writes.

Secondly, says Sullivan, lawyers should bring a sense of calm to the proceedings.

“I’ve heard stories of lawyers getting visibly annoyed or downright rude with common law couples who get emotional in their offices. This won’t help your clients, it’s not good for lawyers, and, frankly, it’s not good for your business. Lawyers have the power to defuse and manage conflict they face — and everyone wins when they do,” he says.

There should also be a system in place specifically for common law couples, he adds.

This may be as simple as providing new clients with a questionnaire to complete before they give instructions. When the lawyer and the couple come to the first meeting fully prepared, even if it is with lots of questions, everyone gets more out of it,” writes Sullivan.

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