Can A Family Law Act Election Be Revoked?

Pursuant to section 6 of the Family Law Act, when a spouse dies, the surviving spouse can elect to take their entitlement under the Will/Intestacy or pursuant to an equalization claim against the Estate.  The surviving spouse has 6 months from the spouse’s date of death to make an election, otherwise they will be deemed to have elected to take their entitlement under the Will/Intestacy.  

In Iasenza v. Iasenza Estate, the courts considered whether or not it was possible for a surviving spouse who had made an election, to subsequently revoke it?  

In Iasenza Estate, the Applicant filed an election to receive her interest from the Estate on an equalization claim,  based on incomplete information that she received regarding the Estate assets.  When the Applicant discovered the additional assets belonging in the Estate, she attempted to revoke her filed election.  

In considering whether or not a surviving spouse could revoke an election, the court referred to Re Bolfan Estate (1992), 87 D.L.R. (4th) 119, wherein the Honourable Justice Hawkins noted that the FLA expressly authorized the Court to grant relief against the consequences of a deemed election but stated that the Act was silent about relieving against the consequences of an actual election.  Justice Hawkins concluded by stating that the Court had no jurisdiction (express or inherent) to grant any relief against an actual election already filed.  

In Iasenza Estate, Justice Hackland refused to follow the decision in Re Boflan Estate. Justice Hackland acknowledged that there is no general right of revocation and a surviving spouse has no right to revoke an election, as such an approach would have the potential to prejudice the interests of third parties who relied on the election and would stand as a roadblock to the timely administration of estates.  However, Justice Hackland did state that the courts have a residual jurisdiction to authorize a revocation of an actual election in circumstances where the interests of justice require it and where the balance of the interests of effected parties clearly warrants it.  Justice Hackland stated that such discretion should be exercised in restrictive circumstances and the Court should have particular regard to the following: 

(a) Was the election filed as a result of a material mistake of fact or law made in good faith? 

(b) Was there any responsibility or culpability on the part of effected parties in relation to the election? 

(c) Was the notice of intent to seek revocation of the election given in a timely way and, in particular, how long after the 6 month filing period was such notice given? 

(d) Has the estate been distributed or would interested parties otherwise be adversely effected by a revocation of the election? 

(e) Does the election result in an injustice to the surviving spouse in all of the circumstances? 

In Iasenza Estate, Justice Hackland exercised the residual discretion of the court, justifying his decision on the grounds that at the time the election was made by the surviving spouse, there was a material misunderstanding or lack of knowledge as to what assets would form part of the estate.

Thank you for reading, 

Rick Bickhram