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Issues related to Will and Inheritance

May 02 , 2023 | 3 min


May 02 , 2023 | 3 min

The case of Estate of Mahfoud Radi (deceased), 2021 ONSC 2065 (CanLII). Mr. Radi was a Moroccan-Canadian citizen who passed away in Canada in 2015, leaving behind a large estate valued at over $20 million CAD.

Mr. Radi’s heirs included his wife, who was also his first cousin and a Moroccan citizen, and their three children, who were all Canadian citizens. After Mr. Radi’s death, a legal dispute arose over the distribution of his assets, with the wife and children contesting the validity of Mr. Radi’s will and alleging that it had been obtained under duress.

The case involved complex issues of Moroccan and Canadian law, as well as questions of cultural norms and expectations around inheritance in the Moroccan community. The parties also had to navigate the practical challenges of dealing with assets located in both Morocco and Canada, including real estate, bank accounts, and business interests.

After a lengthy legal process that spanned several years, the Ontario Superior Court of Justice ultimately ruled in favor of Mr. Radi’s wife, holding that the will was valid and that the wife was entitled to a significant share of the estate. The court also ordered that the assets be divided in accordance with Canadian law, and that the parties work together to transfer and distribute the assets across both jurisdictions.

The case highlights the complexities and challenges that can arise in cases of will and inheritance for a diaspora, particularly when dealing with multiple legal jurisdictions and cultural norms. It also underscores the importance of having a clear and valid will in place, as well as seeking professional legal advice to help navigate the complexities of cross-border estate planning and distribution.

The division of assets and inheritance is capable of becoming intimidating and complex, especially if it involves international components. Same was the case with the Estate of Mahfoud Radi (deceased), who was a Moroccan-Canadian citizen who passed away in Canada in 2015, leaving behind a large estate valued at over $20 million CAD.

Ideally, the law of domicile at the time of death is taken into consideration for movables in the estate, and the immovables are governed under the law of the place that they are located in. However, the existence of a will, means that these rules are not compulsory. Therefore, when there is an existence of the will, you first need to understand the particularities of the case at hand through the submission of necessary documents, such as the certified copy of the will and the necessary translations.

Here, considering that the will was in dispute between Mr. Radi’s heirs included his wife, who was also his first cousin and a Moroccan citizen, and their three children, who were all Canadian citizens. While the genuineness of the will might seem to be the real issue here, however, the main issue related to the division of assets between Canadian and Moroccan citizens, both of whom claim their respective shares within the property.

For this, it is important to take into account the tax treaty existing between Morocco and Canada, which is the Canada-Morocco Tax Treaty (1975), which has provided clarity on how the estates are meant to be taxed, and under whose jurisdiction does the estate falls into.

According to the tax treaty, the income obtained through an immovable property is taxed within the country where the property is located, and considering that majority of the property of Mahfoud Radi existed in Canada, it meant that the required property was subjected to taxation within Canada, and hence, Canada had the jurisdiction over the property. Further, according to Canadian law, it is possible for the jurisdiction to adjudicate on foreign property matters as well, so long as the division of assets is clear and the required documents are property provided.

In the present case, considering the will of Mahfoud Radi was valid as per law, and was not obtained under duress as was argued by the heirs, it meant that Canada had complete jurisdiction to decide on the matter. Further, considering the validity of the will, Mr. Radi’s wife was the right heir to inherit the property in accordance with what had been mentioned in the will. While the Moroccan part of the property would be expected to be adequately taxed within the state of Morocco as part of the inheritance procedure, however, the Canadian jurisdiction shall still have the right to adjudicate on the distribution of assets

Even if it is believed that the will was not valid, according to Canadian laws, the death of the husband means that the other spouse automatically inherits the property. This meant that Mr. Radi’s wife was entitled to her share of the property, irrespective of the existence of the will, considering that majority of the property existed in Canada, the valuation of the property was done in Canada, and the family also majorly connected with Canada, considering the citizenship of all three children in this case.

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