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Inheritance and last will

A recent decision from the Superior Court of Justice of Ontario should serve as a warning to those who may wish to disinherit a family member.

In the case of Eissmann v. Kuntz, 2018 ONSC 3650, the Court had to consider a strange set of circumstances arising from multiple testamentary documents left by the deceased Mr. Kuntz.

At the time of his death, Mr. Kuntz was estranged from his daughter Petra. In a will he prepared in 2000, Mr. Kuntz had made specific bequests to a variety of people and left the balance of his estate to Petra. However, in 2009, Mr. Kuntz handwrote another document which stated that Petra “may not receive a single Euro out of my estate.” Mr. Kuntz appears to have believed that Petra had stolen from him.

Following Mr. Kuntz’s death, the Court had to determine the effect of these two testamentary documents (among others). The Court decided that the 2009 document operated as a codicil to the 2000 will and therefore revoked the prior bequest to Petra.

As a result of this finding, an intestacy arose because the will no longer disposed fully of the entire estate. The Court noted that despite Mr. Kuntz’s intention that Petra was not to receive anything from his estate, the law of intestacy under Ontario’s Succession Law Reform Act (“SLRA”) is clear:

“Where there is an intestacy as to all or any part of the property of the deceased, the intention of the testator simply does not enter into the picture. Intestacy arises when such of the expressed intentions of the testator as can lawfully be carried out have been exhausted. At that point, Part II of the SLRA steps in and prescribes the distribution of the remaining property. It does so without regard to the intention of the testator having regard only to objective criteria.”

The revocation of the previous bequest to Petra meant that the will no longer distributed the residue of the estate. That being the case, the residue was payable to Petra under the SLRA because she was Mr. Kuntz’s only child. Although Mr. Kuntz’s wishes were “as clear as can be” when it came to leaving Petra out of the will, the Court was bound by the law to give her the residue of the estate anyway.

For more information regarding the issues outlined above, please feel free to contact me directly.

Cale Harrison

Associate – Personal Injury and Litigation Group

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving

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