Common-Law Partner Left Out of a Will in Ontario: Your Options

You lived with your partner, shared a life and perhaps a home, and then they died. When the will is read, you are not in it, or you receive far less than you expected. It is a painful moment, and many people assume that being common-law gives them the same rights as a married spouse. In Ontario it generally does not.

That does not always leave you without options. The law has a few different routes for a surviving partner, and each has its own test and its own deadline. This article explains how they work in general terms so you can see which questions to bring to a lawyer.

Why there is no automatic share

A person in Ontario can generally dispose of their property by will, and the law gives no automatic share of an estate to an unmarried partner. If your partner died with no will at all, the intestacy rules do not help you either. Outside the support provisions in Part V of the Succession Law Reform Act, the word spouse means married persons, so an unmarried partner has no intestate share and is not an automatic beneficiary.

Living together also does not change an existing will. A will is revoked only by another will, a declaratory writing, or by destruction with the intent to revoke, and the Act does not provide that a common-law relationship changes a will. So if your partner's will was signed years before you met, it can still stand as written.

The dependant's support claim

The most common route for a left-out partner is a claim for support from the estate. For this purpose, spouse has the same meaning as in section 29 of the Family Law Act, so a common-law partner who meets the three-year or child-and-permanence test can be a dependant of the person who died. That test covers two people who cohabited continuously for at least three years, or who were in a relationship of some permanence and are the parents of a child.

If the deceased did not make adequate provision for the proper support of a dependant, the court may order adequate provision from the estate, whether or not there was a will. A dependant is someone the deceased was supporting, or was under a legal obligation to support, immediately before death.

When deciding, the court considers all the circumstances, including your current and future assets and means, your age, health and needs, and how long you and the deceased cohabited. The court can also attach conditions and can make an order despite an agreement or waiver to the contrary. This is a claim for support, not a claim to half the estate.

Challenging the will itself

A separate route is to attack the will's validity, for example on grounds of capacity, undue influence or suspicious circumstances. Who has to prove what matters. Where suspicious circumstances surround a will, the person propounding it may bear the burden of proving capacity and knowledge and approval. For undue influence, the burden stays with those attacking the will, and bald allegations can fail.

In plain terms, you need real evidence, not just a feeling that the will is unfair. A will that is unfair to you can still be a valid will. Medical records, who was involved in preparing the will and the circumstances of its signing are the kinds of things lawyers look at.

If you want to be heard before the estate trustee is formally appointed, a person with an apparent financial interest in an estate can file a notice of objection (Form 75.1) before a certificate of appointment issues.

Other claims and the deadlines that apply

Depending on the facts, a surviving partner may also have an equity claim. Unmarried partners can claim unjust enrichment, and where there was a joint family venture the remedy is a proportionate share of the wealth accumulated, linked to contributions. There is no presumption of a joint family venture, and intent and conduct weigh heavily. These claims are decided on evidence of what each of you contributed.

The six-month window for a dependant's support application is short, and the court has only limited power to extend it. Do not wait for the estate to settle before asking questions.

What to do next

Start by finding out the facts you will need, and note the dates. Speaking with a lawyer early is sensible because the deadlines run from events you may not be able to pinpoint yet, such as the date probate is granted.

• Find out whether there is a will, and ask for a copy.
• Learn whether an application for probate has been made and whether a certificate has been issued.
• Write down when you and your partner began living together and whether you had children together.
• Gather proof of shared living: leases, bills, tax returns, bank statements and photos.
• List what you contributed to the home or the partner's property, and what you relied on your partner to pay for.
• Collect anything that bears on your partner's health and decisions when the will was made.
• Book time with a lawyer promptly, because the six-month support deadline may already be running.

Frequently asked questions