July 1, 2013 By: Marta Siemiarczuk
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A recent case provides a good reminder of the issues that can arise in matters that intermingle both family and estates law.

The case, Caron v. Rowe, deals with the interplay of a will, a marriage contract, a marriage, and a waiver. According to the decision earlier this year, Paul Rowe made a will in May 2009. He left the entirety of his estate to his parents.

He and Andrea Caron entered into a marriage contract in 2009 and married two days later. Rowe died two years after that. His marriage to Caron invalidated his will, which he didn’t enter into “in contemplation of marriage.” He died intestate.

Caron, as his sole surviving spouse and beneficiary, then applied for an appointment as the estate trustee without a will. Her in-laws and sole beneficiaries under his will objected on the basis of the marriage contract that provided that the parties were separate when it came to property and, further, that Rowe’s home was to remain his sole property forever.

It would have been helpful, I think, to know some more details about the circumstances surrounding the timing of the will and the negotiations of the marriage contract as well as other similar matters. What we do know, however, from Superior Court Justice Gisele Miller’s findings of fact, is that the only provision in the marriage contract that dealt with matters pursuant to the Succession Law Reform Act addressed child support claims with respect to Caron’s children from a prior relationship and nothing more. The marriage contract didn’t contain a specific release of claims pursuant to the Succession Law Reform Act. Instead, it would appear that the only releases incorporated into the marriage contract dealt with her Family Law Act claims upon marriage breakdown.

The historical case law on this point was very clear that to release rights under the Succession Law Reform Act, it’s not enough to release all property claims in the context of the separation agreement or the marriage or cohabitation agreement. Instead, there must be clear and cogent language explicitly releasing the Succession Law Reform Act claims and evidence that the person giving the release understood the nature and consequences of it.

Caron may have never contemplated an impact on her property rights in the event of her husband’s death while they were still a cohabiting couple. It’s also worth mentioning that unlike the prior cases on this issue, Rowe and Caron weren’t separated at the time of his death.

After a review of the leading case law on point, Miller held that while Caron had waived her rights with respect to property claims pursuant to the Family Law Act, she didn’t do so as a spouse pursuant to the Succession Law Reform Act. Therefore, Miller proceeded to appoint her as the estate trustee without a will. As a result, she’ll ultimately receive the entirety of Rowe’s estate.

In my view, this decision is quite correct at law and is one we should all keep at the forefront as drafters of domestic contracts and, often, wills for the same client. The case is rightly a blunt reminder that we need to truly understand our clients’ wishes when preparing estate plans and domestic agreements.

Consequently, we need to take care to ensure those wishes are explicit. In doing so, we need to keep a few things in mind: Will the terms of the domestic contract apply if the spouse dies? Are there other specific terms that will apply if the spouse dies? Should the domestic contract apply at all in the event of death where, like in this case, there hadn’t been a breakdown in the relationship? Is there a will? If not, tell the client to get a will done as soon as possible. You can perhaps even have clients do a holograph will first and then instruct them specifically to inform their estate planning lawyer of the domestic contract to ensure any future will accords with it. If you’re preparing the cohabitation agreement or a marriage contract, make sure the client knows a marriage will make the existing will voidable and a new one will be necessary. And, most importantly, make the waivers and releases explicitly clear.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca.

[This article originally appeared in The Law times.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.