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Law.Hut , Lawyer
Category: Canada Law
Satisfied Customers: 7846
Experience:  with over 15 years experience.
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My friend is separated (not legalized)off & on last 3 yrs,

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My friend is separated (not legalized)off & on last 3 yrs, but have been for l yr but not divorced. Her husband just made a will and but his daughter is the beneificiary & executor. Is this legal? He has never had a will before.Does the wife not count?
Submitted: 2 years ago.
Category: Canada Law
Expert:  Law.Hut replied 2 years ago.

The Will is not illegal, but if the husband dies prior to a divorce, his wife can challenge the Will under provincial legislation. The Wills Variation Act states:

"Despite any law or statute to the contrary, if a testator dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children."

So the husband can name any executor he wishes. But if he cuts out his spouse and she is not a beneficiary at all then she can seek that the court make adequate provision for her support out of the estate assets.

This application cannot be made until after the death of the husband as the Will is subject to being changed or revoked anytime while he is still alive and has no legal force or effect until that time.

I hope this is helpful. If you have no further questions, please rate the answer positively, as otherwise the site does not credit me, even if you have paid a deposit. You can still ask follow up questions after rating though, if you wish.
Customer: replied 2 years ago.

What if she decides to divorced is she still considered a beneficary? Can she claim spousal support?His daughter has done an online will.How good are these wills?She has talked him into giving her everthing.

Expert:  Law.Hut replied 2 years ago.
Se will no longer be a spouse and would not qualify to seek relief under the Wills Variation Act after they divorce. But while he is alive she can seek spousal support to be paid by him. She can apply for that while they are spouses, or after the divorce.

An online Will that meets the necessary requirements set out in provincial law may be a valid Will. But it may be subject to challenge nevertheless if the person does not leave adequate support for a spouse or dependent. A court can determine that a Will is legally valid, but then still overrule the terms of that Will of adequate provision is not made for children or a spouse.
Customer: replied 2 years ago.

What about a life insurance policy?&100,000.00 Is she allegible to part of that money when he dies if they are divorced, or not divorced.

What's your best plan for this friend? What would you recommende for her.It's vitally important for her decision.Thanks

Expert:  Law.Hut replied 2 years ago.
Only the named beneficiary is eligible to insurance funds and the court had no power to reapportion such proceeds, as they will not be part of the estate but will go directly to the named beneficiary. If the wife gets no insurance and is still a spouse, that is a factor the court can consider on whether she got adequate provision or not.

I cannot give legal advice here on this site and do not have any way to offer an opinion here. It is against site policy to give legal advice here. Whether she pursues spousal support will depend on many factors such as their incomes during the marriage and now, their expenses, their type of work, and education, lifestyle during marriage, health factors, to name a few. She should speak in person with an experienced family law lawyer.

A lawyer if not mandatory for this but the law and procedure involved is not simple and an experienced lawyer will be very useful. We are not allowed to refer you to specific lawyers here due to site policies. But the BC branch of the Canadian Bar Association has a free referral service and they have information on that at their web site.

If you have no further questions, please rate the answer positively, as otherwise the site does not credit me, even if you have paid a deposit. You can still ask follow up questions after rating though, if you wish.

Customer: replied 2 years ago.

Can you change the beneficiary on life insurance at any time.What if the wife was on the policy before, can he change that now that he has giving everything to the daughter.Or is it a given that because of the will the estate gets it.

Expert:  Law.Hut replied 2 years ago.
An insurance policy is totally separate from a Will. The fact that he made the daughter a beneficiary on the Will means nothing with regard to the insurance.

Yes, a beneficiary designation can be changed on most life insurance plans, although it is possible to make an irrevocable designation. So I can't say for sure whether he could change insurance to remove his wife or not. It will depend on the policy terms. Those are not fixed by law or the same in every case.
Customer: replied 2 years ago.

How can you find out the policy Name (company)if he won't tell her.Are there public records?

Expert:  Law.Hut replied 2 years ago.
No, there is no such public records or registry. But she can sue him in family court and this is information that would have to be disclosed as part of an application for division of family property or spousal support. She can also just threaten to sue him and say that if he does not voluntarily disclose the information she will seek a court order that he turn it over and that he pay her court or legal fees for having to make that court application, and maybe that will convince him to cooperate.
Law.Hut, Lawyer
Category: Canada Law
Satisfied Customers: 7846
Experience: with over 15 years experience.
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