On March 17, 2020, the alarming spread of COVID-19 prompted Ontario to declare a state of emergency. Theatres, schools, recreation centres, and many other public gatherings have been shut down. OBA members, however, carried on with the Brown Bag Lunch, joining for a Zoom call to discuss hot topics in wills and estates law.
The discussion opened with one BBLer’s query with respect to joint tenancy of a matrimonial home where the spouses are joint tenants along with a third party. One BBLer commented that, where a matrimonial home is owned by one spouse and a third party, section 26 of the Family Law Act would apply such that the joint tenancy would be deemed to have been severed immediately before death. Another attendee suggested that section would not apply if both spouses jointly owned the matrimonial home with a third party.
The topic of MAID (medical assistance in dying) came up when one member cited a Hull and Hull blog entitled, “What Impact Might MAID Have on a Will Challenge”. BBLers generally agreed with the blog’s author in his contention that an evaluation of a person’s capacity at the time of confirming consent to MAID could be used as evidence of a person’s capacity in a Will challenge. One member referred to Banton v. Banton—in which the Court determined that a testator lacked testamentary capacity while retaining capacity to marry—and supposed that the courts may, in future case law, determine that an individual could possess the requisite capacity for MAID without having testamentary capacity.
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