Estate Planning

Upcoming CLE Event: The Impact of Iasenza v. Iasenza Estate on FLA Spousal Elections

By Hull & Hull LLP

The Six-Minute Estates Lawyer 2008 hosted by The Law Society of Upper Canada is rapidly approaching. This CLE event is bound to contain very useful and practical insights for estate litigators, as well as for practitioners who deal with estate matters as part of their practice. In particular, Justin de Vries, counsel to Hull & Hull LLP, will be speaking on the topic entitled "Family Law Act Elections and the Impact of Iasenza v. Iasenza Estate."

Section 6(1) of the Family Law Act provides surviving spouses with the opportunity for an equalization of net family property. Interestingly, this provision is a "one-way equalization," which means that no equalization claim is payable by a surviving spouse to the estate. While the surviving spouse has the choice to take her share of the estate pursuant to the terms of the deceased's Will or make a Section 6(1) election, the latter option carries a six month limitation period from the date of death.

Notwithstanding the above, what happens if the surviving spouse elects to take her share under Section 6(1), but later realizes that this was a mistake? On the face of it, it appears unjust to allow an individual to revoke her election, given that it is incumbent on the surviving spouse to choose wisely with the assistance of judicious counsel. On the other hand, however, why should someone be prejudiced where an error has been made in fact or law?

Iasenza v. Iasenza Estate grapples with these difficult issues. In effect, this decision provides that the court has the authority to set aside a spousal election. For further information and to register for the Six-Minute Estates Lawyer 2008, please click here.

Allan Socken

Full post as published by Toronto Estate Law Blog on April 02, 2008 (boomark / email).