When a testator begins a matrimonial property action against his ex-wife for his undivided interest in their jointly owned duplex home, does the testator have a right to dispose of the property at the time he wrote the will?

As mentioned earlier, the testator commenced the matrimonial property action after he wrote the will. Until a court order is made under matrimonial property legislation, all an applicant has is “a personal right to require the court to determine the ownership of family assets.” Maroukis v. Maroukis, 1984 CanLII 76 (SCC), [1984] 2 S.C.R. 137 at 142. No vesting “in a spouse of the specific property making up his or her respective share” takes place until the date the court order is made.” ibid. Therefore, at the time he wrote the will, the testator had only the power to dispose of his undivided interest in the duplex. The commencement of the matrimonial property action after he wrote the will did not “prevent the operation of the will” with respect to that interest. S. 21(1). The principle in Maroukis, moreover, means that he had no “right” in his ex-wife’s share of the property at the moment of his death. His only entitlement was to have a court-ordered distribution of the matrimonial property.