Estate Lawyer

We use a number of estate lawyers in different jurisdictions or geographical areas as deemed necessary.

 

2 comments on “Estate Lawyer
  1. Michael says:

    Common law spouse dies with out will in Ontario. We have two 2 autos just in her name. The estate is under $200,000. Would the common law spouse be intitiled to a claim for the one autos that he drove .

    • Profile photo of lambep14 lambep14 says:

      In Ontario, common-law couples have no right to inherit property at the time of death of their partner, unless their partner has specifically left them something in their will
      There are no rights in the case of an intestacy
      There are no rights to challenge a will if left nothing

      A surviving partner may be able to argue that the deceased was holding some property in a constructive trust.

      Persons who do not have statutory rights may still be able to pursue alternate claims to property, e.g. constructive trust, quantum meruit, resulting trust, unjust enrichment, etc.
      Common-law alternatives

      Constructive trust
      A constructive trust is a trust that can be imposed on property by the courts against the owner of the property without any evidence of the owner’s intention to hold the property in trust.

      The Supreme Court of Canada has established the following requirements for a constructive trust:
      an enrichment by the legal titleholder;
      a corresponding deprivation to the claimant; and
      the absence of any legal justification for the enrichment.

      In the past, in addition to the above three requirements, you also needed to show that the claimant had contributed to the property, either in cash or in kind. This is not always going to be a requirement, although it will certainly strengthen the claimant’s position.
      The “three certainties” normally required to prove a trust in common law are not required in the case of a constructive trust, since such trusts are established to enforce an obligation that one person may have to another, regardless of intention.

      The CRA views a constructive trust as a personal trust, which is created at the time of the court order, when it becomes subject to the provisions of the Income Tax Act. Once the trust is recognized for income tax purposes, there would be a disposition of property at fair market value by the legal owner, in favour of the rightful owner.

      Quantum meruit
      “Quantum meruit” is Latin for “as much as he has earned”. If a person has expressly or impliedly requested another to render him a service without specifying any remuneration, but the circumstances of the request imply that the service is to be paid for, there is an implied promise to pay quantum meruit, i.e. to pay so much as the party doing the service deserves.

      Resulting trust
      A resulting trust arises where an individual transfers property to another person under circumstances that imply that the individual did not intend that person receiving the property to have the beneficial interest in it – e.g. if the individual received no consideration. The presumption is rebuttable, if the recipient can show that a gift was intended. Ultimately, the settlor’s intentions are just as necessary to a resulting trust as to an express trust, it’s just that the intentions are inferred or presumed, not in writing.
      EXAMPLE:
      Person A adds Person B on as a joint owner to a property, both of them with the clear understanding that when A dies, B will share the property with C, D, and E. In these circumstances, B is holding title through a resulting trust.

      Unjust enrichment
      In common-law jurisdictions, an individual can lay claim to a third party’s property if the individual can show that the third party had unjustly enriched himself or herself at the expense of the individual. In order to sustain a claim based on unjust enrichment, the individual should be able to show:
      A benefit was conferred upon the third party by the individual;
      The third party knew of the benefit;
      The third party accepted the benefit in such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value.

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