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Tuesday, May 21, 2013

Can you do anything about being left out of your parent's will?

Most of the time, parents leave their estates to their children. When that doesn't happen, the child may take the news emotionally. Recently a reader wrote to me about this situation. Her note and my answer are below:

"My husband's mother passed away recently. My husband was surprised and hurt by the fact that he and his sister were left out of the will. Instead, all the money went to the 5 adult grandchildren. My husband said he felt "rejected" when he learned that he was left out of the will. It seems like this could have been avoided if the two children had been included in the will, along with the grandchildren (so the estate could be spit 7 ways instead of 5). Is there a way of addressing this without contesting the will? My husband doesn't like to "make waves" and so I'm not sure he will do anything (except remain angry and hurt the rest of his life) but it would be nice if he at least felt he had some options."

You  have very nicely summed up exactly what goes through a person's mind when they are not included in their parents' wills. Surprise, hurt and rejection are par for the course in this situation. It's not the law that parents must leave their estates to their children, but it is customary.

Yes, you're right that upset could have been avoided, if avoiding upset was the goal when your husband's made her will. However, it appears that she was motivated by wanting to help the grandchildren, for reasons that may never really be known. Perhaps your husband's mother simply felt that distribution among the grandchildren was the best use of her resources and didn't realize that it might result in upset.

It's not up to those of us left behind to re-write a will based on what we believe to be "more fair" than what the will actually says. The executor is bound by the will and can't decide to change it. So, to answer your question, no there is nothing that can be done about the will other than contesting it.

Even contesting the will may not result in a change. Contesting a will is not easy. You don't automatically get changes to the will just because you take it to court. Only BC has wills variation laws that allow a child to contest a parent's will on fairness or moral grounds. The rest of Canada takes the position that a parent is not required to support adult children who are financially independent of them.

A solution is available outside of the courts if all of the five beneficiaries agree to it. That is, the beneficiaries may voluntarily agree to take a 1/7 share rather than a 1/5 share and pay the balance to your husband and his sister. This would, in effect, be a redistribution of the estate, but only after the executor has paid it to the proper beneficiaries.

There are two problems with this idea. One is that people do not like to give up money. The other is that the beneficiaries may not wish to make changes from what the deceased specified in her will.

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