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Legal Ease
Legal Ease, Lawyer
Category: Canada Family Law
Satisfied Customers: 101381
Experience:  I am a practicing lawyer and have also been an online professional for 5 years.
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In Newfoundland and Labrador: Where there is a common law

Customer Question

In Newfoundland and Labrador:
Where there is a common law heterosexual relationship that has produced a child, (who at the time of death is an adult), and the male partner the surviving female partner considered to be the "next of kin" when the marital status of the deceased is "divorced" from his first and only legal wife; and there are two surviving adult children, who were both born in St. John's. Both of these children are older than the son aforementioned.
Thank you......SGG, Ontario, Canada
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Legal Ease replied 1 year ago.

When you say next of kin for what purpose is this?

Customer: replied 1 year ago.
For purposes of having sole access to documents left by the deceased and addressed"to the next of kin"
Customer: replied 1 year ago.
Or, by making the assumption to search his former workplace office, including his filing cabinetsIt appears that she has entered his Death Certificate marriage status as Married......which would infer that she is, in fact, next of kin.......but we, the members of his legal, first family, consider that his status should actually be declared as divorced..since none of us know of any second marriage....and she has admitted verbally that no such marriage did take place.
His two adult children from that first marriage are having to search for information, surrounding his death, his will, and his estate information.....if they are the next of kin, shouldn't they experience more inclusion?
Expert:  Legal Ease replied 1 year ago.

I understand.

In Newfoundland and Labrador, common law spouses do not have property rights nor do they have a estate rights.

That means that this common law spouse does not have any legal right with respect to any assets of the estate unless there is a will that provides these rights.

However, if there is a will it is the executor of the will who has all of the rights with respect to the state. It has nothing to do with next of kin. If there is no will then those that are going to be inheriting, which would be the biological children of the deceased, would be the appropriate ones to apply to the court to administer the estate.

Does that help?

Customer: replied 1 year ago.
Not quite there yet!
We believe that there is a will....with only one beneficiary........but no Executor.....Can the biological children now apply to the court for the validity of the Will to be challenged?
Expert:  Legal Ease replied 1 year ago.

Yes. But the children need strong proof. It is very difficult to successfully contest the validity of the will.

The children have to prove either that the testator lacked testamentary capacity which means that the testator was not mentally competent to make decisions about finances. Or they have to prove that there is undue influence. That is often alleged but exceedingly difficult to prove.

The children should retain an experienced estate lawyer if iat all possible.