Making an Affidavit When No Will Exists

Published on 29 August 2022, 07:22:56 AM

A close friend promises to remember you in their will, but forgets to make one. Pursue it in court or let sleeping dogs lie?

Making a Promise to Gift RRIFs

“Reza” (name changed to protect her identity) chose court when a family friend died without writing down instructions for his RRIFs (Registered Retirement Investment Funds). “Mikhail” reassured her he intended to leave his assets to her and her husband “Alexy”. But when he died intestate without a will years later, the RRIFs were left up in the air.

Probating an Ontario Estate

Time changes everything and by the time Mikhail passed on, Alexy was also gone. That left Reza to probate Alexy’s estate. And collect on Mikhail’s promise. As Alexy would have expected, she filed a motion for a court order declaring her husband’s estate beneficiary of the three RRIFs.

Providing Legal Authority to Transfer Assets

Mikhail’s bank didn’t oppose her application. But what they needed to transfer his assets to Reza was legal authority from an Ontario probate court. There was just one holdup. Mikhail’s cousin in California, “Yanny”, had been served with Reza’s court application. 

Who Inherits — Family or Friends?

Reza, Alexy and Mikhail met at a GTA church in the 1980s. They soon became fast friends. Alexy called Mikhail his brother, Mikhail joined the couple frequently for dinner, Reza attested in her court application. He even moved into their home briefly when he was between residences. Reza and Mikhail stored his possessions when he left.

Canada His Home From Afar

By 1990, Mikhail was restless. He asked his friends to keep his possessions and manage his finances while he moved to California to live in a monastery. They were happy to help. Alexy paid his bills, filed his Canadian income taxes and ministered to his friend’s bank account. The couple collected his mail and he listed their Ontario home as his residence. Summers were spent with Reza and Alexy in Canada.

Church Acquaintances Like Adopted Family

Since Mikhail had asked Alexy to look after his finances, Reza’s husband took charge of his bank accounts and investments. Mikhail took out three RRSPs and in 2003, named Alexy the designated beneficiary. Mikhail’s mother died in 2008 and he confessed to the couple that he had no other relatives. Reza testified in a court affidavit that Mikhail told them he considered the couple his best friends and family and that Alexy would inherit his estate.

RRSPs Rolled Over to RRIFs

The years went by and when Mikhail turned 71 in 2011, his bank automatically converted the RRSPs to RRIFs. It was fairly routine. Mikhail wasn’t consulted beforehand, but there wasn’t much he could have done about it. That’s the law.

Death Leaves Wife as Estate Trustee

Mikhail’s visits to Canada stopped in 2012, but not before he reassured Alexy he wanted him to have his RRSPs when he died, Reza testified in her sworn affidavit. The friends stayed in touch until Mikhail passed away in 2015, leaving his cousin Yanny as contact for the death certificate. Alexy died two years later. 

Missing Will Complicates Estate

But where was the will? Mikhail had told Reza and Alexy they were his sole beneficiaries. Their friend of over 30 years had left writing a final will and testament too late. At least Reza couldn’t find one. She dutifully applied to the court and copied Yanny. That made everything messier.

When an Heir is Uncooperative

Yanny wasn’t as interested in appearing in court as he was in finding out how much Mikhail’s estate was worth. Reza attached three affidavits to her court application — her own and notarized affidavits from her lawyer and Mikhail’s bank, which testified Yanny had been uncooperative. As the court was about to find out.

Adjournment Rejected for Failure to Appear

Yanny asked the court to adjourn Reza’s hearing. The judge complied and set a case conference for a month later. Once again, Yanny failed to appear and requested an adjournment. It was one times too many for the judge. Rejecting the request, he called on Yanny to email his response to Reza’s application within the week. When Yanny didn’t, the judge awarded the RRIFs to Alexy’s estate.

Case Law Carries Court Motion

While Mikhail hadn’t actually designated Alexy the beneficiary for the RRIFs, it was enough that he had done so for the RRSPs. When his bank converted them to RRIFs, the designation stood. What’s a bank to do? It’s the law. Yanny was out of luck. 

Getting an Affidavit to Go to Court

Axess Law Ontario notary publics can witness, sign and seal your affidavit if you need to go to probate court to dispute an inheritance. Virtual notary publics take your information by email and video conference with you to witness your e-signature. Appointments with licensed remote notaries can be made 7 days a week, day or evening. Dial 877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form. In person meetings are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s notary public services.

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