SimpliLaw's Visual Summaries

Welcome to interactive presentation, created with Publuu. Enjoy the reading!

Thankfully, there are legal workarounds to ademption called anti-ademption rules. These rules can be found under the

Succession Law Reform Act (SLRA) and the Substitute Decisions Act, 1992 (SDA) .

Here’s how the rules work under section 20(1) and (2) of the SLRA:

13.2 Understanding Anti-Ademption Rules

214

Lesson 1 – Preparing a Will

Section 20(1): What happens to property in your will after you make changes to it

Say you own a house and write in your will that you're leaving it to someone. Maybe later you

decide to rent out part of it, renovate it, or make some other changes. Good news - these

changes won't mess up your will. Whatever interest/ control you still have over that property

when you die, that's what passes through your will.

Section 20(2): When your property turns into something else

Sometimes the property you mentioned in your will changes into something different before

you die. The law says the person who was supposed to get your property gets whatever it

turned into instead.

Here's what this means based on section 20(2)(a) - (d):

If you made a deal involving the

property but haven't finished it yet

Let’s say you signed an agreement of purchase and sale to sell your house,

which you gifted to your daughter, Michelle, in your will, but hadn’t closed the

sale yet before you died. Michelle, as beneficiary of the gift, would get the

rights from that agreement.

Then your beneficiary gets the rights

from that deal.

Section 20(2)(a)

Let’s say the government needs your property (i.e., expropriate your

property) to develop a transit line and offers you $400,000. Michelle would

get the $400,000 compensation.

Let’s say you sell your house but hold a $600,000 mortgage from the buyer

→ Michelle gets the right to collect those mortgage payments

Let’s say your house burns down and the insurance company owes you

money for the house.

If something happened to the

property (specifically a loss or

damage to the property)

Then your beneficiary gets the

insurance money for the loss or

damage to the property, whether

the loss or damage occurred before

or after the making of the will.

Section 20(2)(b)

Section 20(2)(c)

If the government needs your

property and will pay you for it

Then your beneficiary gets the

compensation

Section 20(2)(d)

If you sold the property but you're

collecting mortgage payments on it

Then your beneficiary gets those

payments.

Let’s say that Dave wrote in his will that he’d like his friend, William, to have his comic book

collection. Months later, Dave passes away. But just before he died, Dave signed a deal to sell his

comic book collection to a comic book shop for $50K, which would have been paid out to him two

weeks after the date of his death.

Does this mean William is out of luck?

Nope, thanks to section 20(2)(a) of the SLRA! Here’s what would happen: William would be entitled to the $50K

that would have been paid out to Dave.

Example

15

Lesson 1 – Preparing a Will

Michelle would get the insurance money.

If an item that was meant to be gifted to a beneficiary was being managed by a guardian (or someone else with legal

authority because the testator was incapable of managing it) and the guardian sold that item, then the beneficiary would

get cash equal to the value of the item (without interest) from the residual estate.

13.2.1 Anti-Ademption Rule under the Substitute Decisions Act, 1992 (SDA)

216

Lesson 1 – Preparing a Will

Meet Barbara, who wrote her will and specifically left:

Everything else (the "residue" - let's say $200,000 in savings) to be split between her other

two children, Mike and Sarah.

Her cottage (worth $600,000) to her daughter Emma;

Her antique car collection (worth $400,000) to her son James; and

Example

The Substitute Decisions Act, 1992, is a statute that governs substitute decision-makers (e.g. a guardian or attorney for

property), who are appointed to make decisions on behalf of a person who is unable to make important decisions.

Section 36 of the SDA has anti-ademption provisions that protect beneficiaries if a guardian disposes of property that is

the subject of a specific gift.

Here’s how it works:

Later, Barbara developed severe Alzheimer's. Her power of attorney, Tim, had to:

Sell the cottage for $600,000 to pay for her care; and

Sell the car collection for $400,000 for additional medical expenses.

When Barbara passes away, here's how it works:

Section 36(1) says Emma and James don't lose their gifts just because the property was sold. They

have a right to the money from those sales:

Emma is entitled to $600,000 (cottage sale proceeds)

James is entitled to $400,000 (car collection sale proceeds)

But here's where Section 36(2) becomes important. The residue (remember, $200,000) isn't

enough to pay both Emma and James their full amounts ($1,000,000 total needed).

So they share the $200,000 residue proportionally:

Emma gets 60% ($120,000) because her gift was 60% of the total ($600,000/$1,000,000)

James gets 40% ($80,000) because his gift was 40% of the total ($400,000/$1,000,000)

Mike and Sarah get nothing because there's nothing left in the residue

Deciding what to do with the family home or cottage can be tough. Here's what you need to consider:

Trustee Selling Property: Unless your will says otherwise, the estate trustee will likely

have to sell the property and invest the money. That’s because an estate trustee has a

duty to convert non-income-producing assets, especially real estate properties, into

income-producing assets.

14.0 Dealing with Family Property

Minor Children: If you have minor children, think about whether the person making

decisions for them (i.e., the one with decision-making responsibility) should be able to

use the family home. You’ll also want to think about whether your minor children can sell

the house or ask the one with decision-making responsibility to leave the home once

they all become adults.

Gifting Multiple Children: If you're leaving the home to multiple children, you need to

decide how they'll share it. They can have equal shares (either as tenants-in-common or

joint tenants) or unequal shares (as tenants-in-common). If the will doesn’t say how the

home will be shared, then the children will have to share it as tenants-in-common.

If you choose joint tenancy, know that any child can break the joint

tenancy later on without needing consent from the other joint tenants. If

a joint tenancy is broken, then the owners’ ownership status will change

to tenants-in-common.

It could be helpful for the children to sign a co-tenancy agreement in

which they agree on how they can sell or transfer their share of the

property. You may decide to mention this agreement in your will as

either a suggestion or as a requirement for your children to sign before

getting the property.

A joint tenant can unilaterally break a joint tenancy

(otherwise known as, “sever a joint tenancy”) in two ways.

They can either:

Transfer their share to someone else; or

1.

Transfer it to themselves.

2.

Either option involves registering a new transfer using

Teraview. Once that transfer is registered, it automatically

breaks up the joint tenancy. After that, the property

owners don't hold the property as joint tenants anymore -

instead, they become what we call "tenants in common."

17

Lesson 1 – Preparing a Will

1 2 3 4

Made with Publuu - flipbook maker