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Sunday, February 24, 2013

They're joint owners but his will gives away their joint assets

Recently a regular reader of this blog wrote to me with a question that illustrates that a will is only going to work properly for you if it fits in with both the law and your circumstances. Here are his question and my answer:

"A friend of mine told me a few years ago he and his wife made their wills. In their home and bank accounts they are joint tenants. He went to his lawyer and changed his will and he said his half of the house and his half of the money goes to his two sons after his death and not to his wife. My question to you is what kind of a will is that?"
The short answer to this question is that it's a will that's only going to work if the husband outlives the wife.
In your will, you can only give away what you own at the time you pass away. Though in life this fellow owns a house and a bank account, on death (assuming he is still married) those things will automatically belong to his wife because of the law of joint tenancy. Therefore the will is trying to give away assets that it can't give away.
If the wife passes away first, the will is fine because the husband will have full ownership of the assets on his wife's passing.
I can think of a few scenarios in which a lawyer might draw up a will like this for someone (and I'm just assuming that the lawyer advised the husband about the law of joint tenancy because that is, after all, the lawyer's job). One possibility is that the husband told the lawyer that he and his wife are planning to split the property between them while they're alive so that they are no longer held jointly. Another is that the husband and wife are planning to get divorced and split up their property.
And the third possibility is that the husband mistakenly believed that if he didn't tell the lawyer that assets are jointly owned, nobody would know and he'd get away with it. You'd be amazed at how often clients don't tell the lawyer the whole story because they don't fully understand how legal ownership works. Unfortunately they pay for it big time later on because the document they pay for is not the document they really need.
The worst case scenario for a will like this is that the sons will try to uphold the will, as they will understand it to contain their father's last wishes. This means a lawsuit of course, in which the very assets they are fighting about are being depleted by legal fees, court fees and accounting fees.
Nothing good is going to happen when a person's will does not work together with that person's bigger picture of joint property, beneficiary designation, insurance and family situation.

1 comment:

  1. My father in secret, in Ontario 1996 severed the joint tenancy on the matrimonial home and 2 rental income properties. He then made a will leaving his half of the matrimonial home to my brother trying to cheat mom out of her home. He was a violent abusive monster and did stuff just out of getting pleasure out of being cruel. I fought with him to change his will or he'd burn in hell. Sept 2000 dying he changed the will giving mom their home. Jan 2001 he died. 14 years later my brother refused to give mom clear title to her home. For 7 years my brother and his family squatted on the cottage in Wasaga Beach, while mom paid all their bills. She lost her life savings in the process as he rental income would not support all the bills, 2008 she was $88,000.00 in debt and I have my brother evicted from the cottage, paid off her bills. In revenge my brother took possession of the 2 rental properties and all its' income. Then without our knowledge stopped paying the property taxes and the city was going to auction them off but the 11 plex apartment was built on land belonging to the matrimonial home which meant mom could loose the house. I paid since 2014 $22,000.00 2 lawyers later and we still don't have title to the house, and my brother still has the 2 income properties & their income. In Ontario it was legal for dad to severe in secret! My brother used that as a weapon to dominate, manipulate and steal mom's property rights. In Ontario this is not a "criminal" offence forcing me to sell a vacant parking lot I owned to pay for more legal fees. Seniors losing their home in Ontario is rampant because our laws were made by criminals or the sole benefit of criminals. The first lawyer did more to benefit my brother than me. The second lawyer is a good man but is bamboozled by my buyer of the properties a dear wealthy friend frankly, who still thinks you can make deals with the devil. Frank my brother is so evil I was forced to agree to sell the matrimonial home for 1/3 its value to increase his exhorbitant demands above market value on the income properties so he and his family get a bigger greedy chunk. My buyer will allow my mother (96) to live in her home of 74 years until she dies, and help me move out of this lawless disgusting city of Sudbury Ontario where no one gives a damn about people suffering. I will spend the rest of my life fighting to get the law changed. If you steal someone's tv you get charged with theft. But if you steal someone's home & property rights the police say it is not a criminal offence but civil forcing you into court until you loose everything you own in the process. Trudi Marie

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