Canadian case reveals complications rising from a dependent ex-spouse.

It is always good practice to have a will in place that is both up to date and easily accessible. Normally this will ensure that your estate passes to those you intended to be your heirs and avoids intestacy and the complications for your beneficiaries of recovering the estate and receiving their rightful inheritance.

However wills can be challenged by those ‘dependent’ on the estate even if that dependence is only recent. Sometimes in later life and with impending demise people reflect on their actions and with a sense of guilt or moral obligation may make provision for an ex spouse who they may not have had contact with or previously provided for, for many years who may become an entitled beneficiary of the estate.

With increased migration there is often an international dimension to inheritance, causing professional probate genealogists, commonly known as heir hunters, like Finders, to maintain an international network, so it is therefore interesting to examine the findings of a Canadian case.

A recent decision of the Ontario Superior Court has significant implications for executors, where a deceased has given financial help, just prior to death, to an ex-spouse with whom he has had no contact in several decades, has no legal obligation to support, and who is not one of his heirs.

In the case of Middel v Vanden Top Estate, the deceased who had had no contact with his ex wife for over 30 years had given her financial support just prior to his death but had not include her in his will. For the five years prior to his death, the deceased provided his ex wife with modest cash sums, purchased a life lease in a retirement home and established an annuity to provide her with a small monthly income.

In making a claim on the estate the ex-wife gave evidence of experiencing difficulty in making ends meet, partly as a result of the (increasing) monthly management fee for the retirement home and sought financial support even though she wasn’t an entitled beneficiary.

The estate argued that her claim should fail as any financial assistance the deceased had provided was due to a moral, not legal obligation. His Honour Tagliano J ruled that a moral obligation was sufficient to ensure that an otherwise qualifying applicant, should not walk away empty handed ‘where there is a legally justified basis for providing otherwise’ and that by his voluntary actions in providing financial assistance, pursuant to this moral obligation, the deceased had brought the ex-wife within the definition of ‘dependant’ under s57Succession Law Reform Act3. This meant that the ex-wife would be a beneficiary of the estate, the value of the deceased’s named heirs inheritance thus being reduced.

In this case however it was found that the deceased had made sufficient provision for the ex-wife, so she did not become a beneficiary of the estate and the named heirs received their full inheritance. The decision has considerable significance in Ontario, and in jurisdictions that have similar legislation which enable those persons who were ‘dependent’ on the estate, but not heirs, to make a claim against it.

So in Ontario at least, even when a will is in place and a former partner may have no legal claim, your generosity in old age may cause your will to be challenged and your estate to pass in part to someone you never intended rather than in full to your named heirs.

Finders have been awarded the ISO 9001:2008 Total Quality Management certification and are the first probate genealogy firm to achieve the international version of this Standard as devised by the IAB (International Accreditation Board). Finders also provide missing beneficiary insurance, which protects trustees and administrators against the event of an unknown beneficiary emerging after an estate, has been distributed. As agents for Aviva they are regulated by the Financial Conduct Authority.

For further information and advice contact Finders, 6-8 Vestry Street, London N1 7RE 020 7490 4935

Daniel Curran
Written by Daniel Curran
Daniel is a leading figure in the UK Heir Hunting industry. He is from Isleworth in West London and has lived in London for most of his life. He has been in the probate genealogy profession since 1990. He formed Finders in 1997 after 7 years at another firm.