Estate administration and blended families
By Kirsten McMahon, AdvocateDaily.com Managing Editor
In the first instalment of three-part series on family law issues in the context of estate administration, Toronto wills and estates lawyer Lisa Laredo focuses on blended families and dependant support claims.
When administering an estate for a testator with a blended family be mindful to ask the right questions to find out if a dependant support claim could be made, says Toronto wills and estates lawyer Lisa Laredo.
“Families who include children from a previous marriage of one or both of the spouses are increasing, and laws have changed over time to accommodate spouses and children from first marriages,” says Laredo, principal of Laredo Law.
“A separation won’t invalidate or revoke a will,” she tells AdvocateDaily.com, but a divorce will revoke the will, any gifts and the appointment of the spouse as the executor.
“Be mindful when dealing with blended families and find out if there are any marriage/domestic contracts or separation agreements which will often dictate the terms of the marriage and the divorce/separation,” she notes.
At the stage of estate administration, whatever the testator has done is what a solicitor is faced with, Laredo says.
For example, if a testator dies, leaving behind his first and surviving second spouse as well as his children, they could all be potential dependants with a claim against the estate.
“If the testator left everything in his will to his new spouse, and made no provisions for anyone else, that’s a red flag,” Laredo says. “Under this example, the children of the first marriage are completely disinherited. Depending on their age, they could have claims for support under the Succession Law Reform Act (SLRA).”
If the testator conveyed property to himself and the new spouse as joint tenants, this could be undone and made subject to a support order if his provision for his dependants is inadequate, she says.
“Similarly, if the testator purchased a life insurance policy and designated the new spouse as sole beneficiary, the proceeds can be made subject to a support order under the SLRA,” Laredo says.
In a situation where there is no will, a child of a surviving second spouse does not meet the definition of ‘child’ in s. 1 of the SLRA, and, as a result, takes no automatic interest in the estate of the deceased, she says.
“However, such a child can make a claim for support under the expanded definition in Part V of the SLRA if they meet the criteria and were supported by the deceased,” Laredo says.
The takeaway is that when handling the administration of an estate, she says counsel should ask who the dependants are and assess if the testator dealt with them adequately.
“If you represent the estate of someone with a blended family, you need to know about any possible claims for support that may be coming down the pipeline. Wills are frequently made and not updated to account for dependants, and this could significantly change the testator’s last wishes,” Laredo adds.
Stay tuned for part two where Laredo will discuss equalization of net family property on the death of a spouse.