In an increasingly complex world, the Financial Post should be the first place you look for answers. Our FP Answers initiative puts readers in the driver’s seat: you submit questions and our reporters find answers not just for you, but for all our readers. Today, we answer a question from Peter about whether his father’s surviving spouse who was written out of the will is entitled to anything.

Q.

Is a surviving spouse entitled to an estate share even if being explicitly written out of a

will

? My father married his live-in caretaker a year before he died of Alzheimer’s disease. This would have allowed her to claim his

Canada Pension Plan

(CPP) payments after he passed. After they got married, he updated his estate documents and explicitly disinherited her from the will, which she seemed fine with. Fast forward and we are now in probate.

The judge is moving toward a trial as there are five wills, three of which my father wrote after being diagnosed with dementia, and so everyone is arguing for a different will, including the surviving spouse. My question is, even though he wrote her out of the will, will the court entertain her petition for a spousal share? What are the chances she gets something? And should I challenge the marriage as well as the will? My father had dementia and wouldn’t have been able to read anything.

—Peter

FP Answers:

Peter,

Family Law

rights are dictated by provincial legislation. I cannot speak about each provinces’ different family laws. In Ontario, where I am a lawyer, marriage is considered a partnership governed by Ontario family law. This specifies married spouses have property, support and

inheritance

rights.

The short answer is that, in Ontario, wills cannot disinherit married spouses from rights to property. Married spouses have property rights to share in any matrimonial home and to share any increase in their family property during marriage. These rights can be specifically varied by marriage contracts or court orders.

If your father married his caregiver, she has rights, in Ontario, to inherit property. She can accept what is in your father’s last will or elect to receive her property rights. These rights give her what she would be entitled to receive through a separation or divorce before your father died. After your father’s death, she can choose to claim her family law election for her property division. This must be claimed within six months of the date of your father’s death. Ontario court applications must be made and courts can extend this time period, if there is no prejudice.

Without making an election, your father’s spouse can be deemed to accept your father’s last valid will. This does not, however, eliminate her rights in equity or her entitlement to support as a married spouse and dependant. When courts consider support, they can consider any support agreement between spouses.

Dementia, by itself, does not mean a person cannot make wills or marry. The question is, did your father have testamentary capacity when he made each of his wills? Were these wills prepared by lawyers and read to your father? Lawyers can give evidence of your father’s competency to make wills. Then courts must decide which will is valid.

There is a different legal test for capacity to marry. You need to obtain legal opinions before challenging this marriage. Your father did not do this while he was alive and this may be a very difficult matter. Clear, definitive evidence is needed to show your father was coerced or could not provide consent to marry.

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What if there is no valid last will and the marriage is valid? The courts can declare your father died without a last will. His spouse could then be entitled to inherit on an intestacy. In Ontario, her share may depend on the date of your father’s death. This assumes there was no valid agreement to separate between the spouses.

Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law. This information does not substitute for legal advice.