Toronto family lawyer free consultation 

If you are looking for a Toronto family lawyer free consultation, please call our Toronto Law Firm at 1 844-618-8080 or text 778-676-3808. 

We also have additional offices in: Newmarket, Vaughan, Collingwood and Burlington. Laws change all the time, so please contact us to learn about up to date laws in your province.

Toronto Wills and Estates

A few years ago, the new Wills, Estates and Succession Act (“WESA”) came into force. Welcome to a new regime for estate planning and administration!

That may have sounded overly dramatic, but WESA really has been a long time coming. After a number of reports recommending law reform to this area of the law, WESA was first introduced in the Legislature in 2008. It was re-introduced and received Royal Assent in 2009. Since that time, we have been waiting for – and preparing for – WESA to come into force.

The main challenge that anyone involved in estate planning, administration and disputes is working through right now is the transition from the old legislation to the new. Here is a brief overview of some of the transitional rules:

Any applications for probate or administration filed before March 31, 2014 will continue under the old rules. After the application is submitted, any additional filings will be under the new probate rules.
Any administration and probate grants issued under the previous legislation are deemed to be valid under WESA.

As of March 31, 2014, all applications for probate or administration must be made using the new forms.
The date of death (whether or not it occurred after March 31, 2014) does affect the application of many of the new rules, including survivorship rules, what happens when a person dies without a will, estate administration, and dealing with deficiencies in a will, to name just a few.

Since these transitional rules are complex, we recommend that you seek the advice of a lawyer if you are dealing with any estate-related matter, including estate planning, administration, or a dispute.

Section 190 of WESA allows courts to give directions on the transition and make orders regarding any legislation repealed by the new act. This section will act as a bit of a safety net because it permits the court to intervene and provide instruction if any circumstances arise that are not specifically contemplated by the transition rules.

As with any new piece of legislation, it will take some time for lingering questions around the application and interpretation of the new laws to be answered. Occasionally, the government will enact amendments to clarify or update a particular provision. A more certain source of guidance, however, is the courts. Over time, judges will be called upon to grapple with issues raised by WESA, and their decisions will give greater substance and direction to the operation of the law.

Until then, it’s a brave new WESA world.

If you are looking for a Toronto family lawyer free consultation, please call our Toronto Law Firm at 1 844-618-8080 or text 778-676-3808. 

If you have been planning to bequest funds or property through an inheritance and want to protect those funds from a potential future divorce, the new Family Law Act may help put your mind at ease. Likewise, if you have been or expect to receive an inheritance and you want to protect it from current or future division as a result of a divorce or “common law” separation, this is now easier for you to do.

Inheritances are now amongst the types of property that will be found to be excluded from family property upon the breakdown of a marriage or marriage-like relationship IF the funds or property bequeathed remain traceable.

Related: How to Resolve Family Issues Outside the Courtroom

In summary, the Family Law Act presumes that all property, including cash and financial accounts, held by either spouse is family property that will be divided equally after separation. However, this is just the starting point. The FLA also provides that certain types of property, including inheritances, will be excluded from the pool of family property if enough evidence is put forward to prove that property should not be included in the pool of family property.

Toronto family lawyer free consultation

To protect an inheritance, the recipient will need to be able to provide evidence of its source, its character and value, the date you received it and how you used it. Copies of the estate documents and other records tracing its use are desirable.

If you are looking for a Toronto family lawyer free consultation, please call our Toronto Law Firm at 1 844-618-8080 or text 778-676-3808. 

It is important to note that the use of your inheritance during the marriage or marriage-like relationship may also be relevant. For example, if funds from an inheritance are intermingled with the family assets, it may become more difficult to argue the inheritance should be excluded. Under the old Family Relations Act and the leading British Columbia Court of Appeal case of 1981, Godding v. Godding, the significance of an inheritance diminished the longer a marriage subsisted and the funds were often divided equally as a result.

Based on the 2013 British Columbia Supreme Court decision in Addison v. Roy, in which the Judge found that inheritance funds received as far back as 1998 could still be found to be excluded property, we can hope that the factor of time will be less important under the new FLA. However, it is clear that the court will require that the funds be easily traceable, and if used for day to day family expenses or travel, they will not be reimbursed upon relationship breakdown.

Further, if invested inheritance funds decrease in value, you cannot look to family property to make up the difference. Also, even if inheritance funds are determined to be excluded from family property, any growth in the value of the funds during the term of your relationship will be included property unless you can put forward a good argument about fairness.

If you are looking to protect your inheritance or you are considering the effects of a relationship breakdown upon the future beneficiaries of an inheritance, it is strongly advised that you discuss your specific situation and goals with a lawyer.

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