• Angela Fallow

PART III: John's Story - The Common Law Spouse without a Plan



John and Yoko had not yet tied the knot at the time of the plane crash. He was still legally married but separated from Cynthia, with whom he had a minor son, Julian.


John was wildly and passionately in love with his soulmate and business partner, Yoko, and loved the freedom of their anti-establishment lifestyle.


They had been working on musical projects with great success for the past few years, however, the commercial building they had purchased as a creative space was in John’s name only. Yoko had been living with John in his Toronto home for the duration of their relationship. They purchased a European villa when they were traveling, but because Yoko did not have her ID with her when they purchased the villa, the deed was also in John’s name only.


Despite suffering from periodic bouts of panic that he would one day die an untimely death, John did not have a will. When the plane tragically crashed killing George, Ringo and John, his fear became a reality.


What Happened to John’s Estate?

All of John’s substantial wealth went to Cynthia and Julian, including his home and the commercial building he shared with Yoko, as well as his investment and bank accounts.


This is because in Ontario, a common law spouse has no automatic entitlement to a deceased spouse’s estate. John’s estate, like George’s, was subject to the intestacy formula, which as a reminder, grants the first $200,000 to the surviving spouse, in this case, Cynthia, with the remainder to be split 50/50 between the spouse, Cynthia, and the child, Julian.


Because there was no will with a trust for minor children, Julian’s share would be paid into the court for release to him at age 18, a tremendous windfall for a new adult.


John arranged a generous settlement for Cynthia when they separated, but despite her financial stability at the time of John’s death, the pain Cynthia endured when Yoko “destroyed her marriage” did not leave her feeling charitable and she was satisfied to see that Yoko was not legally entitled to anything from John’s estate.


Yoko could make an unjust enrichment claim against the part of the estate that flowed by intestacy to Cynthia. An unjust enrichment claim is made when one person contributes value in some form to their own detriment which causes a corresponding enrichment to another and without a legal reason for the enrichment. If Yoko had contributed substantially to the home, or commercial space in terms of effort or money in a way that enriched the estate, even though these properties were in John’s name only, she could assert such a claim.


Yoko could also try making a dependant support relief claim against the estate if she could meet the test to show financial dependancy. However, Yoko had been financially successful in her own right and did not depend financially on John prior to his death. Conversely, Julian and Cynthia were financial dependants of John prior to his death because he paid them monthly child and spousal support, and they would have a competing and likely stronger, dependency claim.


The European intestacy law applied in the same way as the Ontario law meaning European villa became Cynthia’s property, even though Yoko contributed half of the funds to purchase the villa. Yoko would have to sue Cynthia to show that John’s European estate was unjustly enriched to the tune of half the value of the villa if she can show substantive proof of financial contribution.


The Takeaway

A simple Ontario will could have directed John's assets to the people he wanted to receive them. It would have prevented many thousands of dollars in legal fees and years of heartache for Yoko and even for Cynthia and Julian, who were all pulled into an unnecessary legal action.


When someone has no will, or an outdated, incorrect, or ambiguous will, we often hear the lament, “But that is not what he/she would have wanted”. And there is little to be done without tremendous heartache, broken relationships, and high legal fees. Unfortunately, this statement rings true especially upon the death of a common law spouse who dies without a will.

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