As younger generations age, they approach the stage in life where marriage becomes highly probable, if not expected. However, not everyone is opting for marriage as often as they once did and are choosing instead to remain in common law relationships. Partners in a common-law relationship may face a dispute with the deceased’s family if one partner dies without having made a Will. Section 29 of the Estates Act sheds light on who is able to administer an estate in cases where there is no Will, and become the estate trustee (executor). The legislation provides that the estate trustee may be a married spouse, a common law spouse, the next of kin or a combination of these individuals. While the Estates Act does provide that the decision is ultimately at the discretion of the Court, contrary to popular belief, it does not provide for any priority among these individuals, leaving uncertainty for those who survive the deceased.
In practice however, the Court gives priority to the spouse (either married or common law), over the next of kin (Mohammed v. Heera). In all instances however, it will depend on the facts at hand. If, perhaps, the spouse resides in a foreign jurisdiction, while the next of kin is a domestic resident, then the choice may appear less obvious. The glaring issue is that common-law partners may not be entitled to anything if their partner dies intestate, so one might question the prudence of a common law partner to administer an estate that they have no interest in. Furthermore, just because there is no statutory property entitlement for a common-law spouse in the estate of their late partner, does not mean that they are without any claim on the estate. They may have a valid claim for support as a dependent spouse or a claim against property of the deceased based on a measurable contribution, whether monetary or otherwise, made towards the acquisition or growth of such property during their relationship. In this case, as a potential claimant against the estate, the surviving common-law spouse is prevented by an obvious conflict of interest from acting as the estate administrator. A similar conflict also exists for married spouses if their formulaic intestate entitlement in the estate under the succession laws is less than what they might have otherwise claimed as a spouse under the family laws in Ontario. A discussion of these claims is beyond the scope of this article.
One way to avoid these particular debacles is to prepare a proper estate plan. With a named estate trustee in a validly executed will, nothing is up for debate between the surviving common law spouse and next of kin. Particularly as individuals navigate the uncertainty of a public health crisis such as COVID-19, it is prudent to hope for the best, yet prepare for the worst.