On Wednesday I blogged about will drafting and professional negligence issues that can arise for a lawyer. I commented that “dabbling” in an area of the law can be a bad thing – however, knowing about another area of the law is a very good thing. In its most recent Webzine, LawPRO (the professional insurer for lawyers in Ontario) discusses how estates and trusts lawyers can benefit from knowing a thing or two about family law.
When drafting wills, something that is often overlooked is the role family law has on an individual’s ability to dispose of his estate. While it might be nice to think that when doing a will an individual can do whatever he wants with his assets, in many situations this is not the case and there are in fact legal limitations when it comes to disposing of assets.
Some of the “hot button” issues that LawPRO raises include the following:
- Matrimonial home – in Ontario, a spouse can’t dispose of a matrimonial home without the consent of the other spouse – irrespective of who holds title to the property. Keep in mind that that the definition of “matrimonial home” is broad and will frequently include a vacation property.
- Child/Spousal Support – child and spousal support obligations are frequently binding on an individual’s estate – and not simply those obligations that arise by way of court order. Often, domestic agreements and separation agreements will impose support obligations that should be considered when doing a will.
- Dependant Support Entitlement – Part V of the Succession Law Reform Act allows certain classes of people (including a spouse or child) to bring a support claim against an individual’s estate if the individual did not provide adequate provision for dependants in his/her will. The right to bring a claim of this nature applies to former spouses – and can’t be “contracted out of” by a separation agreement.
LawPRO’s article includes a few other issues which are worth a review – and should be kept in mind by any lawyer drafting wills (as well as the litigators that come on to the scene post-death). And in a future blog, I'll comment on some of the issues that family law lawyers need to remember about estates law.