The concept of testamentary freedom refers to a person’s freedom to dispose of their property upon death as they see fit. There are limits on a person’s testamentary freedom and these limits are often reflected in provincial law.
In Ontario, after the death of a married spouse, the surviving spouse has a choice to make. He or she must decide within six months of the death of the spouse whether he or she wishes,
(1) to inherit pursuant to the deceased spouse’s Will (or, if the deceased has no Will, pursuant to the laws of intestacy set out in the Succession Law Reform Act; or
(2) to receive an equalization of net family property under the Family Law Act.
Section 6(1) and 6(2) of the Family Law Act states:
- 6 (1) When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5.
- (2) When a spouse dies intestate, the surviving spouse shall elect to receive the entitlement under Part II of the Succession Law Reform Act or to receive the entitlement under section 5.
Section 5 referred to above permits the surviving spouse to equalize the net family properties.
The net family property is defined at Section 4(1) of the Family Law Act and it states:
“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
- a) the spouse’s debts and other liabilities, and
- b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.
On an equalization, a spouse whose net family property is the lesser of the two net family properties may elect to take one-half the difference between them.
After the Deceased and the surviving spouse’s net family property has been calculated, a spouse can decide whether or not they wish to elect to receive their entitlement from the deceased’s estate as set-out under the Will or if there is no Will, on intestacy, or by way of an equalization payment.
It is important to understand the timeline for making an election.
Under section 6(10) of the Family Law Act, it states:
The surviving spouse’s election shall be in the form prescribed by the regulations and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse’s death.
If financial information is not available for the Deceased, it will be difficult to complete a calculation on the Deceased and surviving spouse’s net family property within 6 months. Section 2(8) of the Family Law Act grants the court the jurisdiction to extend this timeline,
2(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
- (a) there are apparent grounds for relief;
- (b) relief is unavailable because of delay that has been incurred in good faith; and
- (c) no person will suffer substantial prejudice by reason of the delay.
If you are considering a motion to extend the time to make an election you must act with haste. Section 2(8)(b), make it clear that the relief will be unavailable if the delay has not been incurred in good faith.
If a surviving spouse does not make an election within the prescribed six months and does not apply for an extension, the surviving spouse is deemed to have elected to take their entitlement under the Will or intestacy.
Section 6(11) of the Family Law Act, states:
(11) If the surviving spouse does not file the election within that time, he or she shall be deemed to have elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as the case may be, unless the court, on application, orders otherwise.
Why Choose Us
Calculating your net family property statement and deciding whether or not to make an election can be overwhelming. At Bickhram Litigation we represent Client’s who wish to understand how to calculate the net family property statement, and if necessary to file an election on their behalf. For more information on Family Law Act elections, please contact Bickhram Litigation for a complimentary consultation.
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