Friday, December 28, 2012

Holographic will names only 1 of 4 kids - now what?

 Even though I try to answer only one question at a time, the reality is that most estates are not simple, and the questions overlap each other. An example of this is the note below that I received from a reader. His question is simply stated, but the answer is complicated. Here is the question:
 
"My brother died and his ex wife has stated she has a 'holographic' will which names only one of his four children as beneficiary. He has set beneficiaries for his RRSPs, pension and life insurance which include only two of his four children. There is no identified executor for his estate. Do his adult children not included in this will have any rights to his assets?"
 
There are several issues to look at here, but the main one is the validity (or otherwise) of the will. A holographic will, if properly made, is legally valid in most places in Canada. But I've always found it wise to withhold any judgment about whether any particular holographic will is valid until I've had a chance to examine it. This is because most people have no idea what it really means for a will to be "holographic" and refer to all kinds of invalid things as being holographic wills when they are no such thing legally.
 
You said that there is no executor named in the will. This means that nobody has the legal right to administer his estate. Not even the ex-wife who physically has possession of the will. When a deceased person dies without naming an executor, the court can appoint someone to act as administrator. When there is a will but no executor, which really isn't that unusual given that executors may renounce or pass away, the will is taken to the court. The judge then will appoint someone to administer the estate according to the will.
 
There is a hierarchy for who can apply. Assuming that "ex-wife" means they were divorced and not just living apart (lots of times I hear about an "ex" only to find out they are still actually married), she would not be the first in line. She or someone else in your family needs to take the will to an experienced wills and estates lawyer to find out a) if the will is valid and if so, b) who has the right to apply for probate.
 
Now, the reason I'm making such a fuss over the validity of the will is that if the will is valid, your brother's children not named in the will are probably out of luck. If the will is invalid, your brother's estate will be distributed according to the intestacy laws of your province. That usually includes all children, but that will depend on the status of any spouse and the size of the estate.
 
The general rule about adult children is that unless they are handicapped and financially dependent on the deceased, they are not entitled to anything from the estate and therefore have no grounds to contest a will just because they didn't get anything. An exception to this rule is British Columbia, where they  have the Wills Variation Act that allows children to contest a parent's estate on fairness grounds.
 
Keep in mind that since the RRSPs, pension and life insurance policy have named beneficiaries, they aren't included in the estate. They will flow directly to the named beneficiaries. Even if the will were to be contested and a different distribution set out by the court, it will only apply to the assets in the estate.
 
In this situation, you need advice from a lawyer who can look at the will itself, and who is thoroughly familiar with estate laws in your province.
 
 

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