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Wednesday, November 4, 2009

Dower Act can change your plans

Yesterday I met with a client who was in his second marriage. Both he and his wife had children from their first marriages. They agreed verbally that each of them would leave their estates to their respective children.

Unfortunately we ran into a snag that might sound familiar to many people because the situation is not unusual. The client and his wife live in a home that is in his name only. They've always kept it in his name only because their plan is that when the husband passes away, the house will go to his children. The snag is the Dower Act of Alberta.

The Dower Act gives the wife the right to live in the house for the rest of her life. This right arises because they are legally married (the same right does not apply to common law couples) and they live in the house as their "matrimonial home". The husband suggested that in his Will, he would leave the house directly to his kids, thereby avoiding the Dower Act, but that would be ineffective. If he does leave it to his kids, they will only receive the property after her Dower Act rights expire (i.e. when she passes away). Until then they will have to wait.

A person is able to waive his or her rights under the Dower Act. Therefore if this couple really has agreed to the division of property that the client has described, then it would probably be a good idea for the wife to sign a waiver of her rights. In fact, the Dower Act has a regulation that sets out a form for doing so. If a waiver were to be signed, the husband could then make a Will leaving the house to his children.

When I advised the client of his position, he wasn't happy. He hadn't realized there would be a problem. However, I thought it was fortunate that he found out now that his plans wouldn't work, rather than his children finding out after he had passed away.

11 comments:

  1. Can you recommend a good estate planning lawyer in Calgary?
    Thanks.

    ReplyDelete
  2. Definitely. Here are a few to try:

    Lexy Wong of the firm of Bennett Jones LLP, 403-298-3079.

    Shelley Waite of the firm of McLeod & Co LLP, 403-278-9411.

    Jason Sweeney of the firm of Underwood Gilholme, 403-288-8855.

    Nancy Golding, QC, of the firm of Borden Ladner Gervais LLP, 403-232-9485.

    All the best,
    Lynne

    ReplyDelete
  3. Does the Dower's Act apply in Ontario as well as in Alberta?

    ReplyDelete
  4. Hi Dale,

    Thanks for your question.

    Ontario doesn't have a Dower Act. But in Ontario, the spouse's preferential share under the Succession Law Reform Act is $200,000, whereas in Alberta it's only $40,000.

    The preferential share refers to the portion of a married person's estate that goes first to the spouse when the married person dies without a Will. In Ontario, if the net amount of the estate is $200,000 or less, the spouse gets it all. If it's more than $200,000, the spouse gets that amoung first before any other beneficiaries are paid.

    It's surprising how different things are from one province to another, isn't it? As I practice in Alberta, not Ontario, I think you should probably talk to an Ontario lawyer about the rights of a spouse to real estate.

    ReplyDelete
  5. Doing some estate planning and have come across a snag. My wife and I married within the last year. We have lived in separate communities and each of young children. The plan was to live one week at the home she had before we were married so we can spend the week she has with her kids, and then the next week we spend at the home I have so we can spend that week with my kids.

    He scenario is much like you described above where her thought pattern is that she wants to leave her home to her children she she pass away.

    We are now working on a pre nup (yes it should have been done BEFORE we got married) but during the course of discussions she has surprisingly changed her course and has said that she is now wanting to keep her home in just her name where before we were going to each go on each others title, even though I have considerably more equity.

    My question is, due to the dower act do I have a claim on her home should things not work out and am I making too big of a deal over nothing if I am not on title. If I do have a risk, what should I be doing in order to protect myself if she is now not willing to put me on title on her home?

    ReplyDelete
  6. Hello Lynne. Re: Dower Act, can you advise me of the difference of signing an affidavit and signing of a schedule. who signs which or are they both the same form? Lynne Marriott lynnem2004@hotmail.com

    ReplyDelete
  7. Hi,
    An affidavit - any affidavit - is a sworn document containing evidence of some kind. In Dower situations, it generally contains information about the person's marital status and whether the spouse resided on a particular piece of property. A schedule sounds like an appendix or added information. Lots of different documents contain schedules, so it's hard for me to know what schedule you're referring to. Likely it's a list of properties, but that's just a guess. The document it's attached to is not necessarily sworn.

    Lynne

    ReplyDelete
  8. Hi Lynne, my husband and I (legally married) bought a house while I was away from the country. My mother-in-law cosigned it because my husband's income alone wasnot enough for the mortgage (I don't have any income). So now the names on the titils are my husband and my mother-in-law. Now only my husband and I, not my mother-in-law, have been living on this property for quite a few years. My husband said that in Alberta even just one spouse's name on the title, the other spouse is still consider own the house. (I guess as dower act defines). But looking through your article, I started having a doubt about it. Would you analyze our situation? Thank you so much! !!

    ReplyDelete
  9. Hi Lynne
    My sister left her husband to get a divorce about 17 years ago.During this time she signed a dower to their house(if I'm not mistaken). However,they did not divorce, they got back together and have been married an additional 17 years. Now on the verge of divorce again he wants her out of the house that he says is his because of this dower. Does she have any rights to the matrimonial home? Also the house is in his name and he wants to leave it to their son who is now almost 17 years old. Can he transfer the title to a minor in Alberta? (whom has been severely brainwashed against his mother).Sad but true. Any information about her situation would be greatly appreciated.
    Thanks

    ReplyDelete
  10. Lynne, I got married oversea 4 years ago and came to Ontario to live with my husband. This is our second marriage for the both of us, he has to teen kids (young lady living with her mom and 21 y/o soon living with us) I do have a 11 y/o boy living with us as well. We both signed a pre nuptial agreement before getting married which it stipulated that pass and future assets Will remain separate in an event of divorce or if one of us pass away. he is definitely more wealthy than I am. I know he has a will which haven't include me or my son at all, pre nuptial also stipulates that only asset I should get, in a unfortunate event will be a gift from him. During our marriage he also get a property in the USA under his sole name. being said this, am i and my son unprotected if something happens in the future?

    ReplyDelete
  11. My brother and his wife had separated 5 months ago due to his wife's mental illness and her not being healthy/stable enough to be around their children. They were still in love but definitely had their share of marital issues. His wife commited suicide and now her sister is claiming that she is next of kin because they were separated. The sister is now trying to make a case against my brother that he was abusive and they were estranged...even though the abusive part is a complete lie and they spoke and saw each other 3-4 times a week. They even had marriage counselling sessions booked as well as she had her own counselling. The sister also took all of my brothers wife's mail and filed the death certificate a couple days before my brother did. Can she really claim that she is the next of kin even though they weren't divorced? Can she make a case out of this even though everything she is claiming is false??

    ReplyDelete

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