Q: My husband and I separated and have been fighting about dividing property. Sadly, our kids have taken sides and are also divided. My husband recently died. The kids who supported my husband are saying “it’s over” and I have no claim since he’s dead. What happens now?
A: As with many legal matters, this is controlled by provincial legislation so the answer varies. But in Western Canada, on this point the law is quite similar.
The short answer is that you can continue your property division lawsuit against your husband’s estate. If he left a will, then the executors are appointed to stand in the place of your husband in dealing with this issue. Unfortunately, in your case this may mean you are dealing with your own children since it is likely that he appointed them as executors. This will be personally awkward, but your legal position and entitlement to a share of the family property does not change.
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If he didn’t leave a will, or the named executors refuse to apply to probate the will and take no steps to administer the estate, then you can make application for what is termed a litigation guardian. This is a person designated to make decisions pertaining to the lawsuit. That person (it could also be a trust company) can make decisions to settle the matter or proceed to trial.
If the executors do proceed to administer the estate you will probably want to alert them that you are continuing your property division action. If land is involved, you might want to register a caveat or certificate of pending litigation against the actual title. This will prevent anyone from selling the land out from under you while the lawsuit progresses through court.
You may also seek an order from the appropriate level of court, preventing the other side from selling, mortgaging or transferring any property of any description pending the resolution of your claims. This will ensure there is something left for you to get when the court decides how much that will be. Your lawyer should be able to advise on the proper steps to take to safeguard your position.
Whoever ultimately deals with the estate and your claims, they will be effectively holding your late husband’s property in trust, both for you and for the named or legal beneficiaries of his estate. They cannot, at law, ignore your claim. They cannot refuse to deal with you. The comments your estranged children are making are probably just designed to be hurtful on a personal level, and are not an accurate reflection of the law.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
