Estate Planning

DNA matters

By Hull & Hull LLP

The BBC recently reported on a case in which an actress appealed from a decision of the High Court, seeking CDN$1.6 million from the estate of a 92-year old deceased woman who had left her a mere CDN$5,000 in her estate.  The claimant alleged that the deceased had been in a lengthy lesbian relationship with the claimant's mother and treated the claimant as her own daughter.  The Court of Appeal dismissed the appeal, apparently concluding that she was not a dependant. (As an aside, the fact that the actress was noted to be the former wife of director Ken Russell apparently made the case newsworthy).

As has been noted in numerous past blogs, the common law recognizes various arguments that may be advanced against estates.  In Ontario, a claim under Part V of the Succession Law Reform Act is the clearest example of the legislature recognizing obligations that can be binding upon and enforceable against estates, trumping even testamentary intention.

But of course, testamentary intention does matter where a claimant advances an argument based not on allegations of dependency but, rather, on allegations that he or she falls within a class of relative of the testator.  Where, for example, a testator leaves his or her estate to "nephews by blood", a claim advanced by one who claims to fall within that class on the basis of the nature of the relationship (rather than being a blood relative) will almost certainly fail to oust such clear evidence of a contrary intention. 

David M. Smith

Full post as published by Toronto Estate Law Blog on June 03, 2009 (boomark / email).