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Monday, February 21, 2011

Mom makes one child beneficiary, hoping he'll share, but...

A mother made a will, leaving her estate to her oldest child. She tells her children that she has done this with the intention that the oldest child will pay the bills then share the estate with his siblings. But what if he doesn't share? This is the situation one of my readers is dealing with right now.

Now, I don't know why the mother in this case made such a disastrous will. Perhaps she was ill and in a hurry to get something - anything - onto paper. Perhaps she was trying to save a few dollars on the cost of a professionally prepared will, not realizing she was putting her children into a situation where they might have to endure costly estate litigation. Perhaps she was just overly trusting of her oldest son. Very few parents are able to admit that one of their children would ever behave badly to his siblings.

I also don't know why the oldest child is refusing to share. Maybe the mother told him something about the distribution that she didn't tell the others and he feels he really is carrying out her wishes. Maybe he feels that since he's looked after her during her lifetime he's entitled to more. He certainly wouldn't be the first executor to start legal fireworks by re-writing the will he was supposed to be following. Or maybe he just feels that he is going to rely on the letter of the law that says the inheritance is his.

There are both legal responsibilities and moral responsibilities in play here.

The siblings say that their mother intended the estate to be shared among them. Let's take a purely legal look at this. What record exists of her intention? Her will actually says the opposite - that she is leaving the entire estate to one child. A will is supposed to record the last wishes of the testator, isn't it? So on the face of it, the will should stand as an accurate record of what she wanted. She didn't set up a trust and put the oldest child in charge. She didn't divide up the estate among the children herself. She simply left it all to one child. The only proof of her intention of splitting the estate comes from those people who would benefit financially from the split.

The other side of the equation is the moral obligation of the oldest child to carry out the mother's intention, if she did in fact tell him that she expected him to divide the estate. This is an area that is changing thanks to recent cases, many from British Columbia, in which a moral obligation is relied upon to change the division of the estate. The likelihood of success will rely in large part on the provincial or territorial laws of estates that are in place.

But if the other children take the oldest child to court to force him to divide the estate, haven't all of them  - the oldest child included - already lost? Just the fact that they are spending money of their own and are partially depleting the estate reduces the value of the prize they are fighting over. And this doesn't even take into account the damage to the family relationships that will likely never recover from a lengthy, costly, nasty court battle.

The initial mistake was made by the mother, who left a will that any lawyer worth his or her salt would have told her straight up was a disaster in the making. Your will should reflect your actual intentions. No parent should leave everything to one child, assuming or intending for the child to decide what is right. That's the job of the testator, not the executor. Why pit one of your children against the others?

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