Court Has Flexibility to Structure Intestate Spouse to Better Afford to Continue Living In Matrimonial Home
As was recently blogged, under WESA on an intestacy, the surviving intestate spouse will no longer automatically be entitled to a life interest in the matrimonial home.
Section 33 is a new provision that grants the court the power to structure an arrangement to permit the surviving spouse to continue to reside in the matrimonial home, when otherwise it would be financially near impossible, or at least cause hardship, for the spouse to do so.
The court in this situation must also determine that forcing the spouse to leave the home would impose a greater prejudice on the spouse, than would be imposed on the descendents who would then be forced to wait until the spouse’s death to receive their shares of the estate.
In that situation the court also has power to allow any unpaid portion of the spousal home to accrue interest during the remainder of the surviving spouses life that will ultimately be paid to the descendants to have had to wait.
Retention of Spousal Home
33 (I) On application by a surviving spouse, the court may make an order under subsection (2) if
(a) the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person’s death,
(b) assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,
(c) the court is satisfied that purchasing the spousal home under section 31 would impose a significant financial hardship on the surviving spouse,
(d) the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and
(i) the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or
(ii) the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).
(2) The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:
(a) vesting the same interest in the spousal home in the surviving spouse that the deceased person had;
(b) specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;
(c) converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse’s interest in the spousal home;
(d) determining an interest rate, as that term is defined in section 7 [interest rate] of the Court Order Interest Act, or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (c) of this subsection;
(e) determining the value of the registrable charge referred to in paragraph (c) to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (d).