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Real Estate/Estate legal advice - Upon Death

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[OP]
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Aug 20, 2012
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Pacific Ocean

Real Estate/Estate legal advice - Upon Death

Hi guys,

Just want general real estate/estate legal advice as to division of assets (house) upon death of a male and if anything is owing to female (the girlfriend and relative). Story goes they lived together for 10 years. He was sick on and off and had medical issues. He owned the house outright. She helped with finances in the house bills, food, general expenses, care for his medical conditions. Her name was on none of the bills or property taxes. Don't believe they legally established common law relationship under the law. I maybe wrong here. Now he dies. His relatives have taken over the property (no will) and are planning to sell the house. Does the girlfriend get anything seeing no will was left or any documents establishing common law relationship? Her fear is that once they sell the house she legally gets nothing and is out on the street. Should she get a lawyer? Is it worth to take it to court and what are chances she will get any monies at all except a stack of legal fees to pay lawyers?? My first inkling is she will get nothing since no legal documents exist (no will) and no legal common law was established. No different than a girlfriend who lives in a rich dude's house. He dies, leaves her nothing and his side of the family kicks her out. Nothing she can do... or is there?? His side of the fam speaks italian, she doesnt and making things even messier with lack of communication.
If the glove don't fit you must acquit! #WINNING
15 replies
[OP]
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Aug 20, 2012
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Pacific Ocean
haliwood wrote: Kerr v. Baranow https://scc-csc.lexum.com/scc-csc/scc-c ... 2/index.do

Consult an estate law or family law lawyer immediately.
Yup... What she's planning next. A consult with a lawyer. The case mentioned fits perfectly. Sounds like they did have a common law relationship as defined and unjust enrichment could be applied here. Incidentally the 1/3rd property payout in said case matches to what the relative felt she invested (financially) in the 10yrs. She calculates in the low 6 figures. The problem is she never kept all the documents of bills, amounts paid, etc which wud justify the calculation of a monetary payout. Absent minded there.
If the glove don't fit you must acquit! #WINNING
Deal Addict
May 15, 2013
1959 posts
578 upvotes
Montreal
Your post is very funny because you mix what you want (feelings and desires) with what is the law.

The best option ALWAYS is to sit down and negotiate. And if both parties are decent, they will also take in consideration the financial situation of everyone.
[OP]
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Aug 20, 2012
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Pacific Ocean
What I want?? lol. The person mentioned in the post is in fact a real individual. SMH. Personally I dont really get along with this relative but at a base level just wanted to find *IF* she could claim anything in general and relay some basic info. And to be honest the guy was not a good catch and many in the family told her to discontinue the relationship (liar, cunning, borderline illegal shit) 10 yrs ago and that he wud take her for a ride (cash wise). Now a decade later she cud lose everything she invested into this guy. But hindsight is 20/20. Karma so to speak. I have passed along the case mentioned and she needs to see an estate or family lawyer. Based on what she said they seem to be past the negotiating stage. Something about a month's notice. She says the mom is really difficult to deal with and holding to her guns as well speaking very poor english doesnt help.
If the glove don't fit you must acquit! #WINNING
Sr. Member
Jan 15, 2015
631 posts
383 upvotes
aznnorth wrote: Yup... What she's planning next. A consult with a lawyer. The case mentioned fits perfectly. Sounds like they did have a common law relationship as defined and unjust enrichment could be applied here. Incidentally the 1/3rd property payout in said case matches to what the relative felt she invested (financially) in the 10yrs. She calculates in the low 6 figures. The problem is she never kept all the documents of bills, amounts paid, etc which wud justify the calculation of a monetary payout. Absent minded there.
By law, financial records must be kept for 6 years. Immediately request copies of all credit card and bank statements that she doesn't possess as paper copies. Highlight those items that were for joint expenses and upkeep. If house utility payments were made by credit card, the description line is proof positive. Or if she spent an unreasonable amount on groceries for one person, that would show up on credit card statements. Any competent lawyer should be able to tell whether or not these are admissible as evidence in court. Any personal diaries or journals, as well as testimony of corroborating witnesses, should further support her claim.

Gather up all the evidence, and even if she decides not to pursue litigation, this might help with any out-of-court settlement.
Sr. Member
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May 12, 2012
667 posts
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Richmond Hill, ON
100%. The difficulty will be compiling a proper case depending on records maintained. This not a unique occurrence, just the burden of proof lies with the girlfriend. If she can effectively prove that she was a caregiver as well companion, she has rights to a portion of the proceeds of the sale. With a solid case, the defendant's lawyer will likely advise settling (because court is expensive). I would recommend finding a lawyer asap prior to the sale of residence.
Deal Fanatic
Jan 15, 2017
5225 posts
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Ottawa
What province does she live in, as estate law is provincially regulated?
Deal Fanatic
Jan 15, 2017
5225 posts
5265 upvotes
Ottawa
aznnorth wrote: What I want?? lol. The person mentioned in the post is in fact a real individual. SMH. Personally I dont really get along with this relative but at a base level just wanted to find *IF* she could claim anything in general and relay some basic info. And to be honest the guy was not a good catch and many in the family told her to discontinue the relationship (liar, cunning, borderline illegal shit) 10 yrs ago and that he wud take her for a ride (cash wise). Now a decade later she cud lose everything she invested into this guy. But hindsight is 20/20. Karma so to speak. I have passed along the case mentioned and she needs to see an estate or family lawyer. Based on what she said they seem to be past the negotiating stage. Something about a month's notice. She says the mom is really difficult to deal with and holding to her guns as well speaking very poor english doesnt help.
His family has no legal right to give her a month's notice to vacate the property. Without a will, they will need to apply to the court to be appointed as Administrators and that will take time. Your relative should immediately meet with a lawyer and explore the possibility of her applying to be appointed as an Administrator if she so desires. She should first find out from the lawyer what her rights may be and what may legally be hers.
Deal Fanatic
Feb 4, 2015
8659 posts
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Canada, Eh!!
Sounds like common in law and like skeet50 said the laws are under provincial jurisdiction.

She should not move out or sign anything or for that matter deal with the family since they are not negotiating. She should get a lawyer and all communication thru lawyer.
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Newbie
Oct 24, 2006
16 posts
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Toronto
Don't move out and get a lawyer!

It takes much longer to evict a non-paying tenant and it should not be easier for family to evict a common law partner
Deal Fanatic
Jan 21, 2018
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Vancouver
skeet50 wrote: What province does she live in, as estate law is provincially regulated?
This is the correct advice, not to mention regulations about common-law status. Definitely consult a lawyer. The fee just to receive advice would be well worth it.

If they lived in BC, there would be a defacto common-law relationship whether they acknowledged it or not. But she would still have to go to court to establish that now for purposes of the estate if it was never formalized.

As for the house, my understanding of the rules in BC is that if he brought the house to the common-law relationship, the asset belongs to him alone if they separate, or to his estate if he dies. However, the common-law partner could be entitled to 50% of any increase in value since the official start of the common-law relationship. That can be significant for real estate.
Deal Fanatic
Jan 15, 2017
5225 posts
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Ottawa
Scote64 wrote: This is the correct advice, not to mention regulations about common-law status. Definitely consult a lawyer. The fee just to receive advice would be well worth it.

If they lived in BC, there would be a defacto common-law relationship whether they acknowledged it or not. But she would still have to go to court to establish that now for purposes of the estate if it was never formalized.

As for the house, my understanding of the rules in BC is that if he brought the house to the common-law relationship, the asset belongs to him alone if they separate, or to his estate if he dies. However, the common-law partner could be entitled to 50% of any increase in value since the official start of the common-law relationship. That can be significant for real estate.
In BC, as there isn't any will, all assets, including the house, belong to the estate. BC Estate Law (assuming she is in BC) also includes as spouse as a person who has lived for at least two years with the deceased in a marriage like relationship immediately before their death. Distribution of the estate will depend upon whether the deceased had any descendants (usually children) in addition to his spouse. Descendants can include more than children though.

As his family appears to not even recognize her position, she needs to act quickly. She needs to secure all assets (like change the locks on the home, vehicle, bank accounts etc) and be prepared for push back from his family. Knowing her legal rights is paramount in situations such as this.
Deal Fanatic
Jul 4, 2004
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Isn't it true that if the Home were acquired before the relationship then it is exempt from being communal asset? How about how they filled their taxes with the CRA? Did they declare common law or report as single each?
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Deal Fanatic
Jan 15, 2017
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Ottawa
Frankie3s wrote: Isn't it true that if the Home were acquired before the relationship then it is exempt from being communal asset? How about how they filled their taxes with the CRA? Did they declare common law or report as single each?
Make sure you are not confusing family law with income tax law and estate law. All are very different and treat things like real property differently.
[OP]
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Aug 20, 2012
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Pacific Ocean
Province? Ontario.
Toronto specifically.

Details of financial transactions?
Relative is a very poor record keeper. Being honest she's not an intelligent person. Doesnt think things ahead. AFAIK, her name is not on any bills as joint nor any property taxes, etc.

Title of house?
Unknown at this point. This is the key imo. My feeling it belongs to the mother. I recall conversations in the past something about him living with his mother or that she owned the house. Whether his name is on the title is also unknown at this point. If it's the mom's name on the title only... then she's SOL. She wud just be a live-in gf and has ownership of nothing. If his name is on the title or joint with the mom then she has a shot - if she can prove with records they had a common-law relationship.

AFAIK she has appts with lawyers this week.
If the glove don't fit you must acquit! #WINNING

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