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Thursday, April 21, 2011

Can I leave my estate to whoever I want to?

Don't you wish legal questions had simple answers? A straightforward "yes" or "no"? Well, this one doesn't have a simple answer.

Theoretically, a person making a will does have the freedom to leave his or her estate to any person or charity that seems appropriate. But there are restrictions.

The restrictions may have some variations from place to place, but one constant across Canada is that everyone must adequately provide for the following dependants in his or her will:
-  their spouse (legal or common-law)
-  their minor children (legitimate or not)
-  their adult children who are prevented from earning a living by a mental or physical handicap

When I say that a person must provide for these individuals in his or her will, I mean that should the person fail to do so, anyone on that list (spouse, minors, disabled adults) automatically has the right to contest the will to get a larger share of the estate or even the whole estate. These cases really do happen on a regular basis, and I've handled many of them myself.

You'll notice that adult children who are not disabled are not on the list. Contrary to what many people think, you are not required by law to leave your estate to your adult children. If you choose not to, you should be aware that you will be going against popular tradition and will probably disappoint your kids. This doesn't mean that you can't do it; it just means you have to take extra care to have a will properly drafted, your capacity documented, and your lawyer's file stuffed full of noted about why you made this decision.

Laws dealing with wills and estates are provincial (except for taxation) so there are some differences between the provinces. For example, I note that there are several recent cases from BC in which the estate distribution set out in the will was successfully contested. In my opinion, those same cases would not have succeeded in say, Alberta, because the law that allowed the change in BC doesn't exist in Alberta. Obviously these laws will allow or prevent you from leaving your estate to whoever you want to.

All of this discussion pre-supposes that when you make your will, you have mental capacity to do so and are acting freely with no coercion by anyone. If your mental capacity has deteriorated to the point where you are making unreasonable decisions, the law says that you can't make a new will, in effect binding you to the will you made before you lost capacity. For example, if you suddenly decided to make a new will leaving your life savings to a new friend you just met three weeks ago instead of your children, you should assume that someone isn't going to like that and is prepared to contest the will.

2 comments:

  1. I am an Alberta resident. I am planning to leave my estate to my husband, and if he is not living, then to one of my two sisters and to a step brother. I want to exclude my second sister. Is there some specific language to use to ensure her exclusion (other than simply not naming her an heir)? I am concerned that she may attempt to contest my will by claiming she has a mental or physical disability of some type.

    She has had psychological issues over the years, but it is unclear to me if she has ever been firmly diagnosed with anything specific.

    She may well also attempt to claim any number of physical disabilities, such as spinal osteoarthritis (she claims to have this though to my knowledge it does not stop her from doing anything). She has constantly claimed to have various illnesses over the years.

    ReplyDelete
    Replies
    1. Are you, for any reason, financially supporting your sister now, during your lifetime?

      Assuming that you are not supporting her, she has no claim whatsoever on your estate. When a person claims against an estate on the basis of disability, he or she can only claim against someone who has a legal obligation to support that person.

      In Alberta, as in most of Canada, the persons to whom you owe an obligation of support are your dependents - that is, your spouse, your minor children, and your adult children with a disability that prevents them from earning a living. Siblings don't come into it.

      If you are supporting your sister now, she still doesn't fall within those guidelines, but she might have an argument that she is your dependent.

      You don't need to specifically exclude her, though I certainly understand the wish to be very clear about who is in and who is out. You can just keep it simple, and say "I leave nothing to my sister, x".

      Lynne

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