Two Wives, No Will – Who Gets the Estate
Published on 29 August 2022, 07:22:56 AM
A secret wife, no Will, and a substantial estate — who gets the estate or do both?
That’s what unfolded in 2017, when a British Columbia man involved in drugs and gangs died. He left behind an estate alleged to be the result of illicit activities, and a common law spouse his other wife didn’t know about.
Wills law decides who gets the estate in B.C. Axess Law can advise you who gets the estate in Ontario.
Why a handwritten Will can be invalid.
Living Common Law and Who Gets the Estate
Who gets the estate in the case of a common law partner can only be described as murky legal waters. Two kids and 12 years after they met, his first wife was about to get the shock of a lifetime.
Michael Widner’s children from his relationship with soon-to-be legally married wife Sabrina were born in 2005 and 2006. The couple wed in 2008. Barely a year had gone by when the biker met Sara. So began his double life, juggling Sabrina and his first kids with common law spouse Sara and their two kids, born in 2014 and 2015.
The industrious father supported both families well. Although Sara knew there was someone else, she assumed he would one day divorce and legally marry her. Sabrina was completely in the dark.
Marital myths every Ontario spouse should know about.
Wills and Estates, and a Wife’s Predicament
Had Widner married Sara, he would have been a bigamist. But he wasn’t, and that meant Sara met the legal definition of common law spouse in B.C. The couple had lived together in a marriage-like relationship for two or more years. When Widner wasn’t with Sabrina, he was with her.
What to do when there is no Will.
Thus, when Widner died oddly (as bikers often do), Sara applied to the B.C. court for a share of his estate. Sabrina fought back, arguing a deceased can’t have two concurrent spouses under B.C.’s Wills, Estates and Succession Act. But could he?
When There Are Two Wills, Which One is Valid?
The court agreed with Sara. Clearly, the B.C. Act provided for all spouses at the time of death to share in an estate.
Widner didn’t have two Wills. In fact, he had none at all, dying intestate without a Will. Owing to his unusual “career”, Widner also had no tangible (cashable) assets. What happened next favoured his common law spouse and children, to Sabrina’s chagrin.
The court clawed back $150,000 in cash payments Widner had made to Sabrina’s two mortgages (properties held in her name only), and divided it equally between the two spouses.
Probate multiple Wills in Ontario.
Who Gets the Matrimonial Home on Death of a Spouse (Ontario)
Could the same happen under Ontario’s Succession Law Reform Act? Every case is unique, and the Widner case is not a binding legal precedent. Nevertheless, common law spouses in Ontario have no property rights unless they are directly on title to a property, or a beneficiary in a Will.
What Ontario estate law does allow is for dependency claims, or if you supported your spouse (financially, by caring for children, or keeping their home for instance), an action of unjust enrichment.
Your right to the matrimonial home in Ontario.
Why You Need an Axess Law Probate Lawyer
Axess Law’s probate lawyer service helps you complete the probate application. Your first probate consultation is free.
Hiring an Ontario probate lawyer.
First, let’s get your Wills in order. If you haven’t made a Will by now, you could be jeopardizing the financial well-being of spouses or children you love. It’s never too soon to start planning your Will, or to replace a handwritten (holographic) Will with a professional Will from an Axess Law Wills lawyer.
Dying intestate leaves your estate up in the air. Former spouses, disliked family members, or distant relatives with almost no contact with you could apply for a certificate of appointment of estate trustee without a Will. Their involvement could interfere with plans you made with a legally married spouse, common law partner, or even your children before you died intestate.
Drafting a basic Will with Axess Law.
Ontario probate courts can only act on the information before them. When you die without a Will, they rely on relatives or others to come forward to represent you in a certain order, or assign a court-appointed representative to administer your estate. Instead of assets flowing as quickly as possible to beneficiaries, your estate and family may be left up in the air indefinitely.
Axess Law Wills and estates lawyers draft new Wills every time your personal circumstances change.
Save when you make a mirror Will with your spouse.
Our Low Flat Fees for Mirror or Individual Wills
Keep your family (or both of them) safe by drafting a new Will every time your personal circumstances change. Marriage, separation, a new common law spouse, or children on the way are reason enough to update your Will, or make mirror Wills with a partner.
Access lawyers for affordable Wills and estates matters. Axess Law has Wills lawyers in Greater Toronto Area and Ottawa, and virtual lawyer services throughout Ontario. Our flat fee legal services keep making new Wills fast and affordable.
Basic Wills are just $199.99 and up plus HST — $149.99 and up plus HST each when you and your spouse or common law partner make mirror or individual Wills at the same appointment.
Phone for Appointments or Go Online Today
Axess Law Wills and estates lawyers or probate lawyers make remote, virtual video calls anywhere in Ontario. Book via Internet with our online booking form. Or dial our 647-479-0118 lawyer line, toll free to 877-402-4277, to speak to a live operator for the most convenient dates and times for you. We connect you to our virtual lawyer service for remote Wills and estates or probate lawyer consultations.
Headed to Ottawa or Greater Toronto Area? Drop by our open law offices to make appointments. We have locations nearby you with onsite parking, and easy transit access.
