The Effects of Marriage, Separation and Divorce on your Will

We generally recommended that if you have a Will, you review it periodically to ensure that it remains relevant and continues to reflect your wishes. We also recommend that you consult with a lawyer if there has been a material change in circumstances since your will was executed. It is extremely important to follow this advice if you marry or if you separate or obtain a divorce from your spouse. These “material changes in circumstances” can have a significant impact on your Will and need to be reviewed with a lawyer.

If you Marry, Your Existing Will will be Revoked

Upon your marriage, any Will that was executed prior to your marriage is automatically revoked pursuant to the Succession Law Reform Act. There are 3 exceptions to this rule, the most important being if there is a declaration in the Will that it was made in contemplation of the marriage. If your will does not fit into any of the 3 exceptions, you will have to have a new Will executed after your marriage otherwise upon your death, you will be deemed to die intestate and your estate will be distributed in accordance with the intestacy provisions of the Succession Law Reform Act.

If you Separate, Your Existing Will will not be Affected

If you separate from your spouse, your Will will not be affected. It will remain valid and your estate will be distributed in accordance with its terms even if your former spouse is the beneficiary of your estate.

It is our experience that upon separation, most clients do not want to benefit their former spouse. As such, it is important for an individual who has separated to meet with his/her lawyer to review their will and determine if a new Will needs to be executed.

If you are Divorced, the Interpretation of Your Will will be Affected

If you obtain a divorce from your spouse, your Will remains valid, however, its interpretation will be affected by the terms of the Succession Law Reform Act.

Pursuant to the legislation, any gift to your former spouse or an appointment of your former spouse as executor or trustee will be revoked and your will shall be construed as if your former spouse had pre-deceased you.
As such, it is also important for an individual who has obtained a divorce to meet with his/her lawyer to review their Will and determine if a new will needs to be executed.

If you have any questions regarding any of these issues, we would invite you to contact us in order that we can set up a time to meet and discuss your questions.

David Sinclair
B.Com., B.A., LL.B.
Senior Associate, Tierney Stauffer LLP

This article is provided  as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter  referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. 

Estate Planning and Probate Tax

Probate is a legal process that confirms and validates the last Will and Testament of a deceased person.

There is no specific law in Ontario that requires the Will of a deceased person to be probated. As a general rule, the larger and more complex the assets held by the deceased, the more likely the probating of the Will shall be required. Probate tax is calculated at an approximate rate of $5.00 per thousand dollars for the first $50,000 in the Estate and $15.00 per thousand for every thousand dollars over and above $50,000 in the Estate.

Depending on how the assets of the Estate are held, probate tax can be reduced or even avoided altogether.

With the proper estate planning, a business owner can eliminate some of the probate fees that are triggered by his or her death and the ensuing transfer of property. One way to do this is through the use of “double Wills” where one Will deals with assets requiring probate (such as cash and real estate) and the other deals with assets that do not require probate such as shares of a corporation.

If ou have any questions concerning the termination of an employee or employment law in general, please do not hesitate to contact David Sinclair directly 613.288.3226 or by email at dsinclair@tslawyers.ca.

David Sinclair
B.Com., B.A., LL.B.
Associate, Tierney Stauffer LLP

 

This article is provided  as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter  referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. 

Different Methods of Resolving Family Law Issues

After the breakdown of a serious relationship or marriage, the individuals involved will often have a number of difficult issues to resolve in order that they may each move on with their lives. Those issues may include: custody of children, child support, spousal support, property division and the disposition of the matrimonial home.

One of the first decisions that the parties will have to make is how are they going to resolve these issues. Although there are numerous ways of resolving any dispute, this article will examine 4 methods that are often used in a family law context:

• Negotiation
• Mediation
• Collaborative Family Law
• Litigation

Negotiation
Negotiation is probably the most common form of dispute resolution in family law. It normally involves each party retaining a lawyer who, acting on the client’s instructions, will negotiate a resolution of the issues on behalf of the party.
Depending upon the issues involved, it may be necessary for the lawyers and parties to meet at a “4-way meeting” to help resolve any outstanding matters. If a settlement is reached, it will be documented in a Separation Agreement which will be signed by both parties.

Mediation
Mediation is a method of dispute resolution in which the parties retain a third party (i.e. the “mediator”) to assist them in resolving the outstanding issues between them.

The mediator does not take sides nor does he/she resolve the issues for the parties. The parties negotiate the settlement themselves. The mediator’s role is simply to facilitate a discussion between the parties that will hopefully lead to a settlement. If a settlement is reached, the mediator will normally draft a Separation Agreement that details the settlement.

Collaborative Family Law
Collaborative family law is a process where the parties agree to resolve the outstanding issues between them in a cooperative rather than adversarial manner. The parties, with the assistance of specially trained family law lawyers, will identify each party’s interests and will then attempt to craft a resolution that will respect and meet those interests. The process is designed to minimize posturing and tactical maneuvering and to focus as much as possible on settlement. If a ettlement is reached, it will be documented in a Separation Agreement that will be signed by both parties

Litigation
Litigation is a process whereby the parties go to court and ask the court to decide the outstanding issues for them. The parties will often have to attend in court on a number of occasions before the matter is either settled or a trial is held. If a trial is held, the judge hearing the matter will impose a decision which is binding on the parties. Notwithstanding that the parties are in court, they may still agree on a settlement. In fact, over 95% of the cases that go to court will settle before a trial is held.

The choice of the method of dispute resolution will be a critical aspect of resolving any family law dispute. Clients will have to consider the nature and scope of the outstanding issues, the reasonableness of the opposing party, the level of cooperation and communication with the opposing party, finances and any history of domestic violence in deciding which method is appropriate for them. It is highly recommended that a full and frank discussion

If you have any questions concerning the termination of an employee or employment law in general, please do not hesitate to contact David Sinclair directly 613.288.3226 or by email at dsinclair@tslawyers.ca.

David Sinclair
B.Com., B.A., LL.B.
Associate, Tierney Stauffer LLP

 

This article is provided  as an information resource and is not intended to replace advice from a quaified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter  referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship.