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The importance of a well-thought-out estate plan cannot be overstated. Without a valid will in place, a person has no control over the distribution of their assets after their death. 

This importance can be seen in the decision discussed below. In the 2020 Nova Scotia case, a woman died without a will. Following her death, her two daughters sought to remove her common law partner from her home, which she had shared with her partner for over a decade. 

Without a valid will, the court ultimately ordered the partner to move out.

Daughters Want Deceased’s Partner to Vacate Home 

The deceased died intestate on August 26, 2017. She had two adult daughters from a previous marriage. Following the divorce in 1999, the deceased retained the matrimonial home in Nova Scotia.  

At the time of her death, the deceased was in a common law relationship. She had been in the relationship since 2004, and the partner had subsequently moved into her home. Although they were engaged to be married in 2009, a wedding did not take place.  

Following the deceased’s death, her daughters applied for and were issued a grant of administration of their mother’s estate. On March 28, 2018, the matrimonial home was transferred to the daughters as personal representatives of the deceased’s estate.  

Although the daughters had asked the partner to vacate the home on numerous occasions, he refused to leave.  

Thus, on August 2, 2018, the daughters, on behalf of the estate, filed an application for an order requiring the partner to vacate the property. They also sought occupation rent from August 2017 to the present and costs.  

In response, the partner claimed that he was a “spouse” for the purposes of the Intestate Succession Actand was therefore entitled to inherit the deceased’s property. In the alternative, he argued that the exclusion of common law spouses under the Intestate Succession Act infringed s. 15(1) of the Canadian Charter of Rights and Freedoms. Finally, he submitted that he had an equitable interest in the property under the doctrine of unjust enrichment or proprietary estoppel. The partner sought, among other things, an order that the property be transferred to him.   

Court Orders Partner to Leave the Home 

The court began by noting that the Intestate Succession Act lists a “surviving spouse” as an heir entitled to receive property, but the legislation doesnot define who qualifies as a “spouse”. While the partner submitted that it should be interpreted to include an intestate’s common law spouse, the daughters argued that the word “spouse” referred only to a person who was legally married to the intestate. 

After an extensive review of relevant Canadian case law on the matter, the court concluded:

“In my view, the purpose of the Act is to provide a standard system of distribution of the estate of a person who dies without a will, based on the presumed intention of the intestate. More specifically, the primary purpose of the surviving spouse’s preferential share is to prevent a surviving spouse from being left in poverty following the death of their husband or wife…. [C]ommon law spouses are excluded from inheriting under the Intestate Succession Act.”

As such, the court rejected the partner’s claim on this ground. It also considered whether the exclusion violated a common law spouse’s right to equality under s. 15(1) of the Charter, but ultimately found it to be constitutional.

Finally, the court looked to the partner’s unjust enrichment and proprietary estoppel claims. The court noted that a claim in unjust enrichment has three elements:  

(1)  An enrichment of the defendant;

(2)  A corresponding deprivation of the plaintiff; and

(3)  An absence of juristic reason for the enrichment.

In this case, the court found that the partner had not proven any enrichment to the deceased or her estate, as he had not shown that he made contributions to the household on an equal basis. Additionally, the court held that the partner had received mutual benefits from the estate of equal or greater value than his contributions since the deceased’s death, in part by living in the home rent-free since 2017. As such, the court dismissed the unjust enrichment claim. It also dismissed his proprietary estoppel claim, finding that there was no evidence to prove that the deceased had intended for him to inherit her home.

In the result, having found that the partner had no legal or equitable interest in the deceased’s home, the court ordered that he vacate the home within 90 days.

However, the court refused to order the partner to pay occupation rent for his occupancy in the home from August 2017 until the date of his vacancy, explaining:

“Occupation rent is an equitable remedy which may be claimed in circumstances where a person is in occupation of another’s land….  It would not, in my view, be equitable to saddle [the partner] with an order that he pay 28 months’ worth of occupation rent when he must now incur the expense associated with finding and paying for a new place to live. It will be difficult enough for him to find suitable accommodations with his limited income. I dismiss the Estate’s claim for occupation rent.” 

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At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.