23rd November 2017

My Common-Law Partner EXCLUDED me from their Will. What do I do?

Jill had just finished drafting her Will for her family, preparing for the day when she would pass on. Jill determined that she wished to leave everything to her adult children, Paul and Sarah, leaving out her 6-year common law partner, Johnny.

In this specific situation, when Jill dies, Johnny could file a ‘Dependants Relief Application’ to the Court to have the terms of Jill’s Will rewritten to provide for Johnny’s proper support and maintenance. The meaning of proper support and maintenance varies based on many factors including the age and health of the individual, the individual’s capacity to contribute to his or her own support, and the size of the deceased’s estate.

In Alberta, the individuals protected under the Wills and Succession Act include common law partners (i.e. Johnny), spouses, adult interdependant partners, minor children, and dependant adult children. These individuals may bring an application alleging that the deceased’s Will does not adequately provide for their proper support and maintenance. If the Court finds this to be the case, the Court is then able to rewrite the deceased’s Will to ensure that adequate provision for that individual is provided.

Importantly, the individuals mentioned above cannot touch anything that bypasses the estate due to beneficiary designation, as is common with insurance policies or RRSPs, or joint tenancy, which is common for spouses holding real estate. In the situation above, if Jill’s house was owned in joint tenancy by Jill, Paul and Sarah, Johnny would not be able to receive a portion of the house through a Dependants Relief Application, as Jill’s house would not be considered part of Jill’s estate.

Whether you relate to more Johnny or Jill, you can see that the process of Wills and estate planning can be complicated. To ensure that your testamentary wishes remain intact, it is strongly recommended that you work with a lawyer when:
i. Drafting your Will;
ii. Implementing estate planning strategies; and
iii. Filing for a Dependants Relief application.

Ready to get the Wills and Estates advice you need if you have a common-law partner?

Contact Wills and Estates lawyer, Joe Eisenlohr, at jweisenlohr@stringam.ca or fill out his online consult form by clicking here.

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Written by Joe Eisenlohr