Question:
An elderly couple in their early ‘80’s meet, and decide to move in together. She had a townhouse and changed title to her daughter’s name. She has been in the friend’s house for about 3 yrs. He has one child, a son, and added him to the title of the house as a Joint Tenant.
They are both very I’ll. His son and wife are looking after them. There is a Will that leaves everything to his son and appoints the son as Estate Trustee.
If he dies before she does, does she get half of his half of ownership in the hosue? If she dies can her kids contest the will?
Answer:
Reasonably speaking, I would suspect that they would have in place a reciprocal estate plan. That might have been reduced to a “cohabitation agreement”. They should have one, absolutely. But, if they don’t, there are other issues which can arise.
They look like they are spouses of one another under the Family Law Act. That means the support obligations under the Act apply to them. It appears that she falls within the definition of a “support spouse”. So, she could sue his Estate for support after he dies. presuming that she qualifies, and the track record indeed proves that he was supporting her. If so, then, the support obligations will continue. Ultimately, the question would be: who supported whom over those three years? That means that a Court might conclude:
- He supported her,
- She supported him,
- No one supported anyone.
Do they have any joint assets or jointly acquired property? If so, whatever that may be, she is entitled to her share. This arises by reason of “unjust enrichment”, under the law of Restitution. It’s not based on family law, but might arise in a family situation.
For an interest in the house under the Family Law Act, she would actually have to be married. At best, she gets the right to live there for 60 days, not ownership.
As you can appreciate, there are lots of issues and lots of questions to be asked. So, arriving at a correct answer would take a great deal of time and investigation. It would be a lot cheaper now, to have both parties complete their estate plans together with an Estate Planning lawyer rather that have a dispute later.
Brian Madigan LL.B., Broker