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  • Common Law Property

    I have a Co-habitation Agreement (CA) with my partner of 2 years and recently she passed away. I have a few questions/concerns and wondering if anyone here can give me their experience or thoughts:

    1) CA is typed, each page initialed, signed by both of us and witnessed by one person

    2) She bought a house. I am not on title but our CA specifies that should one party pass on the surviving party takes ownership of the property and that all contents of the property become that of the surviving party. Since she bought the house with a down payment of her own, I never felt right living there. So the CA is drafted and signed to reflect that I pay the mortgage until it equals the amount of the down payment and then after that time, the mortgage will be split evenly and both parties start contributing in that fashion. This is all in the CA in detail. I also have financial back-up showing this.

    3) Will Issues: There are 2 wills floating around. She has a Will dated 2005, which I have seen (typed, 1 witness signature), executor is sister who she has a relationship with. Another Will dated 2007, which I have not seen (he won’t show anyone), executor is brother who she has NO relationship with.

    4) Brother is unaware of our CA and wants the house and all the contents.

    I have seen a lawyer but wondering if anyone out there has had somewhat this kind of experience. What rights do I have? Province is ONTARIO.

  • #2
    First off, sorry for your loss.


    the brother has to show the will, there is no way he can get around it. Is he saying that in the will he gets everything??? The big question is if the will (first have to find out if the brother actually does have a will or is the 2005 one the valid one) trumps the CA.

    Comment


    • #3
      1) Brother is saying he is Executor and the house and property becomes property of her Estate.

      2) Brother has not shown anyone the will. We have only seen the first page where it states her Ex-husband was the Executor (but then her legal separation overrides that since there is a full page release on it saying he can't benefit ever again from her - that was Nov 2010). His "WILL" is dated from 2007 and he states that he back-up Executor is him. The house she purchased was in Nov 2011. Our CA is dated Dec 2011. We have also seen the last page of the Will which is signed by a lawyer claiming "on or about" a certain date, he witness her signing the Will. We have yet to see the signature page.

      3) I was told I am not allowed to see the will unless I am named in it. Since I didn't know her at the time, I know I am not named it whatsoever.

      Comment


      • #4
        You have a legal claim to the property. If he wants to challenge your claim, he must provide proof of his own claim. This is what you write to him. You also write that you are more than willing to sit down amicably and discuss the matter with full disclosure of the will, but that if he continues to refuse, you will take legal action and seek costs.

        She didn't own the house (from your timeline) when that will was written so the will doesn't specificly make a statement about that house, only "her property." The house ceased to be her property upon her death, according to your agreement. It is therefore not part of her estate. (I am not proving anything, I am offering a line of argument. You should seek proper legal advice.) Your CA should overide any previous will.

        Your payments on the mortgage were clear indication of a Constructive Trust. This alone would be a clear challenge to the brother's will, if indeed he has one. It rather smells that he has a single document naming alternative executors, not a complete will.

        I would make my first step a call to a real estate lawyer and see what steps you need to take to have the house put in your name based on the CA. You will need to do this regardless. When you find out what to do, you inform the brother that he has 30 days to provide you with clear proof of any claim against the property.

        Comment


        • #5
          How do you get along with the sister??
          I am not sure but as long as the ex-husband isnt benefitting from the will he may still be able to be the excutor of the will, really not sure though.
          He has to show the will in its complete form to someone. He cant just say that you have to get out of the house with nothing to back it up. He has to give a copy of the will to anyone named in it. Is he trying to say that he is the only person named in the will??

          Do not let him take or enter the property until you speak to a lawyer who specialty is wills and estates. I have a feeling the brother is just out for himself and is trying to pull a fast one.

          check out this site for some answers
          http://www.attorneygeneral.jus.gov.o...states-FAQ.asp
          Last edited by standing on the sidelines; 10-07-2012, 09:52 AM.

          Comment


          • #6
            Back-up Story:

            1) She and ex-husband were going through massive legal battles upon her death. Ex-husband was using kids against her. She died with them saying they hated her.

            2) I get along with sister wonderfully. She completely supports me.

            3) Brother and sister do not get along. Haven't gotten along in years.

            4) Brother is on Ex-husband side from the moment she left. Last exchange with brother was hostile and negative.

            5) Brother hired a lawyer and requested I vacate house stating that the house is the property of the Estate and since he is the Executor they are taking all contents and the property. Like, I suppose to just hand over keys and say. Here you go without providing me proof he really is the Executor.

            Comment


            • #7
              If they have been that bold, then I would respond with a registered letter to the lawyer stating that they have presented no evidence of a claim and that any attempt to enter the property will be an act of trespass.

              It is important with trespass that you inform the party that they are not allowed on the property (in different circumstances that is why we post no trespassing signs.) They must be informed that they aren't allowed on the property and also that you reject their claim. Frankly I would do this tomorrow. I would also ask neighbours to keep an eye on the place and to call you immediately if anyone comes to the home during the day. If you believe they may have keys, have the locks changed.

              I would also see a lawyer about this asap. You are going to need one.

              Similar to what I said about the trespass order, their letter to is the first step in taking any action on their part. If go to court to seize the property, they can show that they took steps to inform you beforehand, etc.

              Even though IMHO you have a legal claim, if they go to court you may find that they have filed a suit and are seeking to have you evicted from the premises. Until you are able to show your own proof, the only documents the court will see is theirs. You really have to be on top of this. Worst case scenario you may see your claim recognized in a year or two, after they have seized the property and sold the contents. Now, I am saying "worst case", that is if you sit around and don't respond.

              Comment


              • #8
                3) Will Issues: There are 2 wills floating around. She has a Will dated 2005, which I have seen (typed, 1 witness signature), executor is sister who she has a relationship with. Another Will dated 2007, which I have not seen (he won’t show anyone), executor is brother who she has NO relationship with.
                If he claims something - that the Will gives him an entitlement - then hold him to the strict proof thereof. Executing a will revokes previous wills, so the 2007 will is the only one that matters.

                2) Brother has not shown anyone the will. We have only seen the first page where it states her Ex-husband was the Executor (but then her legal separation overrides that since there is a full page release on it saying he can't benefit ever again from her - that was Nov 2010). His "WILL" is dated from 2007 and he states that he back-up Executor is him.
                Being the executor is not a benefit. If ex-husband wants to be the trustee then I would be surprised if the brother could prevent it.

                5) Brother hired a lawyer and requested I vacate house stating that the house is the property of the Estate and since he is the Executor they are taking all contents and the property. Like, I suppose to just hand over keys and say. Here you go without providing me proof he really is the Executor.
                Hold him to the strict proof thereof.

                Then provide him with a copy of the contract, asserting that as trustee he is bound by the contract to transfer the house into your name.

                Then hire a lawyer. This will be messy.

                Comment


                • #9
                  [If ex-husband wants to be the trustee then I would be surprised if the brother could prevent it.]

                  Ex-husband can't be Executor as Separation Agreement releases them from each other and states they can not represent the other upon death of the other.

                  Definitely sending a registered letter to his lawyer stating proof required for the claim.

                  Brother also requested all documents she had, I am sure this is in reference to their ongoing child support/custody battle. Since she passed I cleaned up lots of documents that were copies and had them shredded. Whatever was important is with her lawyer.

                  Comment


                  • #10
                    Ex-husband can't be Executor as Separation Agreement releases them from each other and states they can not represent the other upon death of the other.
                    I would make the idle comment that Wills are upheld by the Court with greater frequency than separation agreements - and separation agreements often include unenforceable clauses.

                    If he decided he wanted to be the trustee there would be a sporting chance that the clause in the separation agreement would be found unenforceable.

                    Comment


                    • #11
                      I see a few issues with the Wills.....

                      The first Will....witnessed by 1 person? Wills must be witnessed by TWO people. And each witness must not be a beneficiary of the Will.

                      The second Will, without seeing it, may have similar issues to the first.

                      That doesn't say that either Will cannot be probated, but a judge will likely scrutinize both substantially harder than had they been executed appropriately.

                      Comment


                      • #12
                        Went to see a lawyer and he adamantly states that I don't have to see the will. That unless I am named in it, then I don't need to see it. He states that since a lawyer is acting on their behalf, the lawyer I saw it.

                        I think I need another lawyer. Also in our CA, I have rights to all items in the property and I distribute as I see fit. They have no claims to her personal documents, laptop or clothing.

                        Comment


                        • #13
                          Originally posted by Pippi123 View Post
                          Went to see a lawyer and he adamantly states that I don't have to see the will. That unless I am named in it, then I don't need to see it. He states that since a lawyer is acting on their behalf, the lawyer I saw it.

                          I think I need another lawyer. Also in our CA, I have rights to all items in the property and I distribute as I see fit. They have no claims to her personal documents, laptop or clothing.
                          HMMM you think that your lawyer would have requested a copy of the will in order for the brother to prove his claim. The brother is asking you to give up a house and contents based on what he says?? That wouldnt fly with me.

                          Comment


                          • #14
                            Completely agree. Retainer was not enough for him to really do anything. Since he is representing me I can request it regardless what he thinks I should be doing. Can't I do that?

                            Comment


                            • #15
                              Originally posted by Pippi123 View Post
                              Completely agree. Retainer was not enough for him to really do anything. Since he is representing me I can request it regardless what he thinks I should be doing. Can't I do that?
                              I am not sure but I know there will be members on here that will be able to give you a clear answer.

                              To me I would need to see proof of the claim, not take someones word on it. Who even knows for sure if his lawyer has seen it.

                              Is the sister named in the will?? If she is then that maybe a way to see this will. She can request a copy of it and let you see it avoiding legal fees to get a lawyer to get it for you (if they can).

                              Comment

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