Being able to give something of value to a loved one after you pass away is something that many people hope to be in a position to do. Whether it’s jewelry or land, one of the most important reasons to have a will is to make sure that your estate is distributed as you want it to be. Without a will, your estate will be distributed according to the law, and that may see things unfold in a way that was not intended. A recent decision highlights the risks and uncertainty that can be found when someone does not have a will in place.
The deceased owned a farm which he and his son worked on. He had five children from his first marriage and one child, “BW” during his second marriage. When the deceased died without a will, BW claimed that before his death, his father had agreed to transfer the farm to him. The agreement was drafted by a lawyer but not signed. The estate did not believe the agreement was enforceable, and the parties ended up before the courts to settle the matter.
The estate said that the deceased lacked the capacity to enter the agreement and that BW had exerted undue influence over his father. Finally, the estate argued the agreement was unconscionable and unenforceable.
The matter was originally decided by way of summary judgment, with the Chambers judge finding that the deceased had not received independent legal advice, adding that there was a question of undue influence before him, but those should be determined at trial.
BW has provided an affidavit to the court indicating that when he was a teenager, his father told him he would eventually get the farm and that the father wanted to ensure it would be operated by his family in the years following his death.
BW had been living away from the farm until from 2003 until 2012, at which time he returned home for a job, which allowed him to contribute to the operations of the farm. He began working the farm full time in 2015, after which time he told the court he and his father agreed on an agreement with terms including BW’s intention to purchase the land owned by his father, and that his father would assign the crown lease the farm is on to RW.
RW worked the farm until his father’s death and had purchased equipment to do so. Prior to his father’s death, the two visited a lawyer where an agreement to purchase the crown lease was made in consideration for $1, and that the land owned by the father would be sold to RW for no more than $300,000.
The court narrowed in on the lack of independent legal advice provided to the deceased. In the final years of his life, he was in ill health and was completely reliant on BW. Furthermore, the agreement for BW to purchase the farm was never finalized, and that his father should have had a lawyer look at the agreement before signing it.
Contact NULaw in Toronto to obtain proactive legal advice and plan your intergenerational wealth retention strategy. We provide unparalleled personal guidance for all your estate planning needs. Understand your options, minimize your legal and financial risks, and protect your loved ones. Contact us online or at 416-481-5604 to book a consultation today with estate planning lawyer Lex Arbesman.