When the husband’s will excludes his wife from inheriting their property

This means that if a husband or wife tries to exclude their spouse from the property in the will, the spouse can seek recourse through the courts. Under Family Law, the estate will have to pay the surviving spouse their fair share of equalization.

The Family Law Act of Ontario has a saving provision if this occurs, as the ex-spouse can elect under the Family Law Act to proceed by way of equalization instead of the will of the deceased spouse. This election must occur within six months of the death of the deceased spouse under the said Act, failing which the Will dictates.

Such was the dispute in a case that came before the Ontario Superior Court of Justice for resolution in 2024. Here, despite staying married for 46 years and having children together, the husband chose to bequeath none of their properties to his wife in his will. After his death in 2021, it became clear that the wife would be entitled only to her half-share of the limited funds held in bank accounts and some minor investments.

The extent of the husband’s estate.

The deceased husband’s estate consisted of 6 properties, including the matrimonial home. They were all in the husband’s name. There was also an empty lot that was registered jointly in the name of both spouses. In his will, he left all six properties to the couple’s children. The matrimonial home, which was in the husband’s name until his death, was left to their son in his will.

The wife requests sole possession of the matrimonial home.

It was clear that the wife was entitled to much more than half her share of the funds in the bank accounts under the Family Law. According to one estimate, the equalization amount was calculated to be around $2.1 to $2.4 million, depending on the market value of the properties. It made sense for her to approach the court for equalization.

However, the wife requested the court to grant her sole possession of the matrimonial home in lieu of the equalization payment. She has been living in the matrimonial home throughout the 46-year marriage and wanted to continue her living arrangements. The matrimonial home was valued at $2.4 million, and this comes close to the amount she would be entitled to under equalization.

The son opposes the transfer of property.

However, her son opposed her request to transfer the ownership of the matrimonial home to her in lieu of equalization. He argued that all six properties must be sold together in order to obtain the best market value for the estate. After the sale, the equalization amount owed to his mother can be settled from the proceeds.

The court orders the full sale of the properties.

While making the ruling in favour of the surviving wife, the court made the following observations.

• The wife is entitled to much more than the meagre half-share of funds in the bank accounts and minor investments.
• The deceased husband’s estate owes the wife her share of equalization, which is a very substantial amount, falling between $2.1 and $2.4 million dollars, depending on the final sales price of the property.
• It is also clear that without selling off the properties, it will not be possible for the estate to raise the funds to pay the equalization amount owed to the surviving wife.
• The judge dismissed the wife’s request to take possession of the matrimonial home where she continues to reside. The court observed that her dead husband’s intentions in the will to exclude her from the property “cannot be overlooked.”
• The judge ordered the estate to list all the properties for sale at the best market price and settle the equalization payment with the widow from the proceeds.

Though the deceased husband might have hoped to exclude his wife from all his properties in his will, family law took precedence over succession law in this case. This ensured that the wife’s right to equalization of marital property was not bypassed in the process.

How can our family lawyer help you?

Our lawyers can first advise if a spouse should elect under the family law act rather than go with the Will of the deceased spouse. The above case also demonstrates the importance of proper estate planning and the need for taking your spouse into confidence before executing the will.

Another option is to execute a marriage contract to ensure a more equitable division of the property between the spouses. However, while a will can be amended without the knowledge of the spouse, any changes to the marriage contract require the consent of both parties. Also, your spouse will have equal ownership of the matrimonial home regardless of the provisions of the will or the marriage contract.

If you are planning to execute a marriage contract, contact our legal team for assistance. Our experienced family lawyers in mississauga can help ensure that your interests and rights are protected in the agreement and that it is legally valid and enforceable. Contact our legal team today for a consultation at 905-405-0199.