If a person wishes to specifically bequeath assets included in the family patrimony to their spouse, they should ensure to stipulate in their will that these bequests are conditional upon renouncing the division of the family patrimony. In trying to advantage the disadvantaged, it sometimes happens that we disadvantage the one who was advantaged.
The family patrimony, although it came into effect in 1989, is still a concept that raises many questions for many people.
Thus, Mr. Edgar, or Edgar for short, married for the second time under the separation of property regime, bequeaths specifically to his spouse Jeannine, his retirement plan, the usufruct of his residence, as well as half of the bare ownership of said residence. He leaves the other half of the bare ownership of his residence to his children. However, the bequests to his wife Jeannine are conditional on her renouncing all her rights in the family patrimony.
Jeannine addresses the Court* and asks for the clause requiring her to renounce the family patrimony to be declared null and void. In addition to the specific bequests, she claims her share of $72,500 representing half of the family patrimony, consisting mainly of the residence and the retirement plan, which were fully owned by Edgar.
The Court declares that the spouse "who makes a conditional bequest requiring the renunciation of the family patrimony" offers the other spouse the possibility to choose "between the sharing of the patrimony or the property bequeathed conditionally upon renunciation of the sharing." If this were not the case, every time a spouse chose to bequeath a property included in the family patrimony to the other spouse, the latter would be entitled to that property, and in addition, to the value of their claim in the family patrimony.
Therefore, if a person wishes to specifically bequeath properties included in the family patrimony to their spouse, it would be necessary to ensure that they stipulate in their will that these bequests are conditional upon renunciation of the sharing of the family patrimony in order to prevent this situation. In trying to advantage the disadvantaged, it sometimes happens that we disadvantage the advantaged.
* C.S. Montreal 460-17-000523-050, 2006-01-06
