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Wednesday, August 14, 2013

Once the will has been made, can the other spouse change it?

I recently saw a question on that I thought was interesting. I wanted to answer it not on the Q-and-A forum, but here where the readers are interested in how the law works in Canada. If you'd like to see the answers that other lawyers gave, click here to go to the forum.

Here's the question (the grammar is pretty funky, but it's still mostly readable):

"Once the will has been made, can the other spouse change it? If so wouldn’t us, as my mom's kids would have to sign something? I have 11 brothers and sisters before my father passed away. He had a will that all his kids will come and have part of the house. We can either sell it or keep it in the family but now since my mother has passed away she changed the will and made it to my nephew. Can she do that? Wouldn't all of us kids have to sign papers saying it will go to him? None of us did so. How can this happen if that's what our father wanted? My mom came down sick with cancer and on morphine and not in her right mind. How can she make a difference? Will letting my nephew have our part out of the house legal?"

No, a person can't change another person's will. But your mother can do what she wants with the house, including giving it to her nephew, and no, you wouldn't have to sign anything.

Your mother didn't change your father's will. She only changed her own will. It looks to me as if your father died and left the house to your mother, and under his will if she died before him, you kids would share the house. However, she did not die before him. He died and left the house to her.  It was her  house. Therefore his will was carried out exactly as he had written it.

The will leaving the house to the nephew was your mother's will. When she died, it had nothing to do with your father's wishes anymore; it was all about her will. She is a person and gets to make her own will dealing with the assets she owns. There is nothing stopping a spouse from changing his or her own will once they are widowed.

It does concern me though that your mother would decide not to leave a major asset to her kids, and by-pass them in favour of a nephew. I don't know all the facts of course; there could be a logical reason to name the nephew that I am not aware of. Families are complicated and often parents use their wills to send some kind of message. However, if the new will was made while your mother was sick and taking morphine, there is a chance that she didn't really intend or want to make that will.

This is something you might want to talk over with a lawyer. Tell the lawyer all you  know about the making of the new will (for example, how did the timing coincide with your mother's illness and treatment? Who took her to the lawyer, or did the lawyer come to her? Was there even a lawyer involved?) If the nephew coerced or unduly influenced your mother into changing her will, the will would likely be held by the court to be invalid. Perhaps several of your siblings could pool your resources and go see a lawyer together.

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