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Monday, June 26, 2017

Thinking about organ donation? Watch this video to see what a difference you can make.

Whenever I make Advance Healthcare Directives with my clients, I talk to them about whether they want to be organ donors. Most do, telling me that they would like to help someone else, given the chance, so I include that in their documents. Those of you who have made that decision, check out this video to see how your choice could change someone's life.

Sunday, June 25, 2017

Can a 30-day survivorship clause be challenged if it lets property go outside of the family?

Sometimes a person who leaves behind a valid will has talked about his or her wishes to family members. Unfortunately, that conversation can lead to problems, especially if you talk about your estate in a way that seems contradictory to  your will. This happens more than people might think, and even those who think they are communicating clearly can be misinterpreted.

A reader recently raised this topic here on this blog. Below are his question and my comments.

"Curious if a 30-day clause can be contested. My aunt recently passed and left her estate equally to my dad and my other aunt. My other aunt has just passed away from cancer and based on the 30 day clause, her share of her inheritance will go to her new husband. She has left her entire estate to her new husband. Both aunts didn't have any children. There was a 30 day clause in my first aunt's will that if either my father or her sister died within 30 days, the estate will go to the other living sibling. The time between their deaths is closer to 40 days. Can and should my father contest the will? What does the law say on this type of situation? My first aunt wished to keep her estate within the family, but this was said verbally."

The 30-clause that is being discussed here is standard in wills, and is usually referred to as the "survivorship clause". It says that if a beneficiary under the will does not survive the testator (the person whose will it is) for 30 clear days, then the beneficiary does not inherit the gift and it goes to someone else. If the beneficiary does survive for 30 clear days, then the beneficiary does inherit the gift. This type of clause is intended to add certainty and to streamline the estate administration process, particularly in cases where there is a common accident which causes multiple deaths.

I don't know off the top of my head any cases which challenge the survivorship clause on a basis similar to what you have mentioned. The basis appears to be a concern that the outcome of the estate distribution does not match what the remaining family members perceive to be the wishes of the deceased person.

I can tell you this, however: where there is a valid will left behind, the law considers it to be the last wishes of the testator. That is, after all, its entire purpose. It is up to each of us to ensure that the will we leave behind says what we really mean. There are two possibilities here. One is that you're wrong about what your aunt wanted and she was perfectly okay with the beneficiary's husband getting the property. The other is that your aunt failed to communicate her wishes, which is her responsibility.

In my opinion, a verbal wish that property be kept within the family is less than useless as a reason to contest this will, for a couple of reasons. The first is that it's verbal. Our wills legislation in all provinces and territories in Canada require wills to be written down. The second is that the phrase "within the family" is pretty vague. One might well argue that a person's spouse is part of their family, after all. Your interpretation of the word "family" is not the one that matters when we are talking about someone else's will. This means that even if you somehow pulled off a miracle and persuaded a judge that a verbal statement should form part of the will, you're stuck with a verbal statement that is open to wide interpretation.

Will challenges are not easy. They take years to get through the courts and cost tens of thousands of dollars for each person involved. They should not be undertaken without strong proof. It may seem to you that the way the estate is being distributed is not what your aunt wanted. You may even believe that "everyone knows" it's not what she wanted. But you have to remember that what sounds right to a small family group around the dinner table is just not enough for a court of law, especially when her own will contradicts you.

On the facts you've presented here, I just don't see a valid reason to challenge a will.

Thursday, June 22, 2017

The Law Show: changing and removing executors - now online for listening

The latest episode (June 22, 2017) of The Law Show is now available online for you to listen. This week we talked about changing your executor when you change your mind.  We also talked quite a bit about how someone other than you - such as a beneficiary - applies to the court after your death to remove your executor. Lots of great info! Click here to go to and scroll down to the episode you want. The newest one today is track 12.

Sorry Bro, You're Out: How to Fire a Family Member Without Destroying the Family - or the Business

When we plan for passing the family business down to the next generation, we often talk about "seeing how things work out" and "training a family member to take over". But what if the family member in question is not doing a great job, and is just not working out well at all. Now you're in a tough place. How do you fire someone in your own family? Can it be done without causing World War 3?

I found an article at that has some solid advice for business owners who are the awkward position of having to fire someone that he'll see around the Thanksgiving table. Click here to learn five tips you'll need if you're in that situation.

Thursday, June 15, 2017

Can a grandchild request an advance on inheritance from a living grandparent's executor or POA?

Here's a really interesting question from a reader. It deals with asking for an advance on an inheritance from an older relative, and who might be allowed to make that decision. Read on for the question and my comments.

"A grandchild is looking for a advance on the inheritance from their living (90 yr old) grandparent. Is this legal? I believe grandma's executor will be asked. And he may be the POA as well. Again is this legal?"

You ask a couple of times whether "this" is legal but you are not very specific about what "this" is. On the face of it, you seem to be asking whether it is legal for someone to ask their grandparent for an advance on their inheritance.

A grandchild is not normally mentioned directly in a will, though of course it happens sometimes. Does this grandchild know for sure that he or she is actually named in the will? I'm a bit uncomfortable that everyone is so familiar with the contents of Grandma's will while she is still alive, but I realize some people do tell their families what their wills say.

Of course it's legal for a person to ask for an advance, but the person must be careful not to cross the line into bullying. Making Grandma feel for any reason that she cannot refuse the request is elder financial abuse. That is bound to result in disharmony and disputes within the family. If Grandma is of sound mind, then by all means someone can ask her for financial assistance.

The other possibility is that you're asking whether it is legal for someone to agree to the request. It seems that the grandchild is planning to ask someone other than Grandma herself, which is interesting. Does she not have the mental capacity to deal with the request?

You  mentioned that the executor will be asked to make an advance. That would be completely illegal and would, in fact, be theft. The executor has absolutely no legal authority to touch Grandma's money while Grandma is alive. Read the will. Read ANY will. It says, "when I die, this person will be my executor". It does not make them the executor while she's alive.

This is a bit of a pet peeve for me. How many times have I told someone who will be an executor in the future that they cannot act as the executor now, only to have them snap at me that they have the right to make financial decisions? No, they don't. It is illegal to take your parents' money without legal authority and a will gives you no authority whatsoever while the person is still alive. Hopefully I've made my point. The executor may NOT advance anything to the grandchild, and if he or she does, I hope the rest of the family steps in and puts a stop to it.

You also mention the Power of Attorney (POA), who is in a very different position from a would-be executor. The person acting under a POA does have legal access to Grandma's money, as long as the POA document has been properly brought into effect. Most POA documents require a doctor to provide a statement that the person has lost capacity before it can be used. I'm assuming that the contingency has been properly met in this case.

So, we've established that the POA can access Grandma's funds, but can  he or she give an advance on an inheritance? The first and foremost guideline for anyone acting under a POA is that he or she must always act in the best interest of the person he or she represents, in this case, Grandma. How does it benefit Grandma to advance funds to the grandchild? Is it the best thing for Grandma, or is it really only good for the grandchild? The POA must put Grandma's best interest ahead of anyone else's, even if the grandchild is a child or sibling of the person acting under the POA. That's a tough standard to meet.

I think in a case like this, the person acting under the POA would be justified in looking at the bigger picture to take into consideration how Grandma interacted with her grandchildren financially before she lost capacity. Has she made advances to other grandchildren? If so, that might indicate that she would choose, if she could, to make an advance now. Has this particular grandchild asked Grandma for money in the past? If so, it could indicate that the grandchild is taking unfair advantage of Grandma, and that she would refuse if she could. The family context is very important.

Of utmost importance is the question of whether Grandma can actually afford to part with the money for an advance. Her own care and accommodation must the first priority for the person acting under the POA document. If her financial picture is modest, it is really not fair to ask her to compromise her own future care to help a grandchild.

As an aside, I suggest that if the advance is made, it should be documented in writing to avoid any future issues.

I realize that you probably would have really liked to get a "yes or no" answer, but it's never that simple in estate law, I'm afraid.

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