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Tuesday, September 18, 2012

All this will be yours one day: Are testamentary promises enforceable?

The Ontario courts have recently dealt with a case that I believe will be of interest to many readers.

The case concerned a father who kept promising his sons that one day the farm and substantial monetary assets would be given to the sons. However, despite the sons doing all that he asked and making choices and sacrifices specifically to hold up their end of the deal, in the end the father left the sons very little. He gave his assets to his new wife.

The question for the court was whether the bargain between the father and the sons would hold up legally. In this case, it did hold up, at least in part. The sons received the farm. To read more about this decision and the reasons given by the court, click here to see a blog post at www.allaboutestates.ca.

I find the case interesting simply because so many people tell me that someone - a parent, relative or family friend - promised them something from an estate but the promise wasn't upheld. Back in the days when I did estate litigation, I heard this frequently. People weren't happy when I told them I didn't think suing the estate would work out for them.

This case clearly sets out what needs to happen in order for a promise like this to stand up legally. If your elderly uncle casually mentions one day as you sip a beer in the backyard that he is thinking about leaving the house to you, and that's the last you hear of it, then don't count on receiving it. In order for your claim against the estate to be successful, you would have to show that you believed you'd own the house, and that you relied on this promise to your own detriment with your uncle's full knowledge.

As the author of the www.allaboutestates.ca blog post said, people are allowed to lie about the contents of their wills.

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