Although the primary purpose of a will is to let a person decide who will receive their property when they die, the law still places certain limits on that freedom to protect the interests of a spouse and dependants, even if they are not mentioned in the will, or receive less than what the law would otherwise provide.
Rights of a Spouse
The Family Law Act protects a spouse's interests. When a person dies, the surviving spouse has a choice. They can choose to inherit whatever is left to them under the will, or they can instead claim what is known as an "equalization payment" — an amount paid by one spouse to the other so that both end up with an equal share of the property accumulated during the marriage.
An equalization payment is calculated based on what each spouse owns and owes as of the date of the deceased spouse's death. The spouse with the greater net worth must pay the other spouse half of the difference between them. For example, if the husband's total net worth is $100,000 and the wife's total net worth is $60,000, the difference between them is $40,000. If the husband dies, the wife would receive half of that difference — $20,000 — even if she receives nothing under the will. By electing to claim an equalization payment instead of an inheritance under the will, the will itself is not invalidated, but the shares left to other beneficiaries will be reduced to satisfy the payment.
Rights of Dependants
The second group of people who may be entitled to a share of an estate, even though they are not named in the will, are "dependants." The Succession Law Reform Act (SLRA) and the Family Law Act list the people you must provide for if they are found to be your "dependants." This group includes your spouse, parents, grandparents, children, grandchildren, and siblings.
Who Qualifies as a "Dependant"?
To qualify as a "dependant," a person must show that they were receiving financial support from you, or were legally entitled to receive financial support from you, immediately before your death. A dependant may need to prove this before the Court. If the Court finds that the person is a dependant and that they can demonstrate a need for financial support, the Court may order that they be paid a sum out of the estate.
Changes to the SLRA and the Property Rights of Separated Spouses
The Accelerating Access to Justice Act, Bill 245, which took effect on January 1, 2022, made several changes to the Succession Law Reform Act (SLRA).
As of January 1, 2022, spouses who have been living separate and apart — but who are not yet divorced — for a minimum of three years, or who have entered into a valid separation agreement or are subject to a court order to that effect, are treated as though they were divorced. This means that a separated spouse who was named as an estate trustee or as a beneficiary under a will loses those entitlements. Previously, unless the spouses had a separation agreement with specific provisions regarding property rights, a former spouse in this situation could still make a claim for a share of the estate under the Family Law Act.
