Difference between revisions of "Further Topics and Overlapping Legal Issues in Family Law"

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Further Topics and Overlapping Legal Issues in Family Law (view source)

Revision as of 18:47, 8 July 2014

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→‎Wills and estates issues
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''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.
''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estate is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.


Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/84fx Wills Act]''. Sections 3 and 4 set out the basic requirements for a valid will:
Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:


<blockquote><tt>'''3''' A will is valid only if it is in writing.</tt></blockquote>
<blockquote><tt>'''3''' A will is valid only if it is in writing.</tt></blockquote>
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A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of the provincial ''[http://canlii.ca/t/840g Estate Administration Act]''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.
A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of the provincial ''[http://canlii.ca/t/840g Estate Administration Act]''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, and the remainder being split with any surviving children.
===Unmarried couples===
A person can make a will making anyone a beneficiary of his or her estate. The nature of the person's relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.
The ''[http://canlii.ca/t/840g Estate Administration Act]'', the law that applies when someone dies without a will, requires that a certain amount of a dead person's estate go to people who qualify as a ''spouse''. Spouse is defined as including "a common law spouse"; common law spouse is defined as:
<blockquote><tt>(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or</tt></blockquote>
<blockquote><tt>(b) is living with another person in a marriage-like relationship, and has lived in that relationship for a period of at least 2 years;</tt></blockquote>
The ''[http://canlii.ca/t/84g0 Wills Variation Act]'' defines ''spouse'' as a person who:
<blockquote><tt>(a) is married to another person, or</tt></blockquote>
<blockquote><tt>(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.</tt></blockquote>
What's interesting about the ''Estate Administration Act'' and the ''Wills Variation Act'' is that they both require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.
===Planning ahead===
If you have separated and don't want your spouse to make a claim to your property after you die, you should change your will. If you are married and have separated, you should include wording in the new will to the effect that the new will is being made with your divorce in mind and stating that you do not wish to provide for your spouse as a result. You should then prepare another new will after the order for your divorce is made and is in effect.
If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouse, state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.
In either case, it's a good idea to speak to a lawyer who specializes in wills and estates issues if you think you need to change your will.


==Parental support==
==Parental support==
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