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There is a will that states that the house is left to the children…

Customer Question
There is a will that...
There is a will that states that the house is left to the children but new spouse can live in the house alone as long as the general upkeep and taxes are paid. It also states that all of the furniture of the decest must stay in the house as long as the new spouse is there. The problem is this the new spouse is already asking about moving in a care-giver, can this be done? The spouse so far can take care of them self, can still drive, but states that there is limitations due to a shoulder injury.

The other problem is that the furniture was legally owned by originator of the wills 1st spouse, who is deceased. Specific items were left to the children and as of yet have not been taken out of the house and the rest of the furniture and appliances were to be left in the house to be used by the owner of the will until death at which time they were to be sold and the proceeds to be split between the children. Do they legally have to leave what was willed to them in the house until the 2nd spouse no longer lives there? If so how do they insure that the furniture is not sold or given away?
Submitted: 8 years ago.Category: Canada Law
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Answered in 8 minutes by:
6/9/2010
Lawyer: Debra, Lawyer replied 8 years ago
Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 106,003
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debra thal :

Does the Will actually use the term "alone?"

Customer:

yes

debra thal :

The Will is then actually poorly written and leaves a lot of room for arguments unfortunately.

The Court would most likely allow her to have a caregiver. The law with respect to caregivers or assistants of any kind, in most areas, is that the assistant is more like a necessary addition to the person and the assistant doesn't usually count as a separate person.

So, for example, if a disabled person needs to have an accompaniment somewhere where the numbers of admitted people are restricted the assistant will not count as a second person.

As well, the intent of the testator would be considered and it's hard to see why a husband who is leaving his wife a life interest in the home would not want her to have a live-in caregiver. It's likely the intenst was for her not to live here with a new spouse or partner.

The Will does not cover assets that are not his to begin with.

If the furniture is being held by him in trust for all of you then when he dies that furniture does not form part of the estate and you would be entitled to it.

Does that clarify things?

Customer:

Sorry, I had to leave in a hurry - but I have 1 more question and Iwill accept the answer - If the spouse decides that they no longer can take care of the person who has written the will and demands that the children take over and they them move the person out of the house that is theirs can the spouse still live there and must the spouse be responsible for day to day expenses and upkeep?

debra thal :

Whose name is XXXXX XXXXX in?

Also, is this a legal marriage and is there a marriage contract?

You do understand that the Will is not the least bit relevant at this point, right? I thought these questions were about what would happen down the road. The Will is totally irrelevant until your parent dies. It's as if it does not exist. Do you understand that?


 

Customer:

The house is in the name of the person who wrote the will - the marrige is legal and there is no contract. The children have power of Attorney which they have acted upon so now the spouse states that they are not capable of taking care of the legal owner of the house. We do not know if they will be movng out or expect us to move out the owner of the house.

Customer:

This marage was for 9 years - the 1st marrage was for 52 years. The house was purchased at the beginging of the 1st marrage and at one time the deed had both parents name on it.

debra thal :

What province is this please?

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