The family home can often be one of the most valuable items, both emotionally and financially, in an estate. Determining what will happen to a family home can be an incredibly important aspect of proper estate planning. Of course, in all areas of the law, there are always considerations that can complicate what one thinks should be a fairly straightforward matter. Take for instance a recent case before the Supreme Court of Nova Scotia where the court had to determine what happens to a wife who shared a home with her husband on First Nations reserve lands. She is not a member of the band, but he was. When he died, the court had to determine what happened to the house.

The facts

The husband and wife lived together on a home on a First Nations reserve beginning in 1986. He was a former chief of the Annapolis Valley Fist Nation (“AVFN”). They lived in the home together for over 30 years, and invested over $140,000 in improvements in the home. While the wife was not a member of the AVFN, she was active in the community until her multiple sclerosis prevented her from doing so.

The husband died on July 9, 2016 his Certificate of Possession for the land the family home sat on was his only substantial asset. His will stated he wanted to leave his estate to his wife, and in the alternative, to his two sons. The wife’s income was made up of disability and CPP payments and only amounted to about $775 per month. Since she was not a band member she was not eligible to obtain assignment of the Certificate of Possession as called for in the will.

The law governing family homes situated on First Nation reserves, including their matrimonial interests or rights is the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “FHR”). It was under the FHR that the wife applied for indefinite exclusive possession of the home.

The court’s considerations

The FHR allows the court to take many considerations into account. The court looked at a handful of factors in making its decision to grant the wife indefinite exclusive occupation of the property.

The first was the wife’s age. In addition, she also suffers from Multiple Sclerosis, does not have a high income, and has lived at the home for over 30 years. The court also recognized that the husband had left the entire estate to the wife, with the primary asset of the estate being the family home. Finally, the court recognized that the husband and wife had invested a considerable amount of their own money into improvements on the property.

In granting the wife occupation of the property, the court also stated its ruling was subject to any material changes such as the wife re-marrying, relocating to an assisted living facility, or her failure to maintain the property.

At Eisen Law we focus exclusively on estate and trust litigation. We provide our clients with clear guidance on their issues and help them make fully-informed decisions with the aim of reaching resolution to even the most complex estate and trust disputes. Please call us at 416-591-9997 or reach us online to see how we can help you today.



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