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Tuesday, November 5, 2013

Your mother is leaving everything to your brother, not you. Can you contest this?

I learned early in my wills and estates career that absolutely nothing upsets a person like being overlooked in a parent's will while a sibling inherits everything. Not improving your financial situation is probably something that most can survive; it's the lack of "love" from the parent that really stings. This is what makes people want to compete for the parent's estate. It's my job to take the drama out of it. I recently heard from a reader whose husband has apparently been taken out of his mother's will. Her letter and my answer are below:

"My mother in law has removed my husband from her will and left everything to his brother. We have also heard she has already signed the house over to him. Can we contest this when she dies?"

Let's look at the will situation. This is not going to be a "yes" or "no" simple answer. You personally can't contest anything because you have no rights whatsoever to your mother-in-law's estate, but I realize that by saying "we" you actually mean your husband. 

The answer to the question depends on several factors. The first factor is where your mother-in-law lives. If she lives in British Columbia, there is a law known as the Wills Variation Act that allows the children of a deceased parent to ask the court for a different distribution if the will is unfair. It doesn't guarantee that the court will agree with the person who asks for the change, but it does allow him or her to at least ask. Outside of BC, this law doesn't exist.

Another factor to consider is whether your husband is mentally or physically handicapped to the extent that he cannot earn a living. If he is, then he may well be able to challenge the distribution under the will on the basis that he is a handicapped dependant of his mother. If he is not a handicapped dependant, she is under no legal obligation to leave him anything. The courts in Canada follow the rule of testamentary freedom, that is, the right to leave your estate to whomever you want to, as long as your dependants are looked after first. 

Also to be considered is whether your brother-in-law is influencing or coercing his mother into making him the sole beneficiary. This is a really tough area of law as it is nearly impossible to figure out why a person does what she does, and whether she does so freely. It is not legally acceptable for your brother-in-law to force or trick or pressure his mother to change the will in his favour, but how do you prove it? If you feel that this is happening, you would want to speak with a lawyer who is thoroughly familiar with wills litigation to get an idea of what your chances would be, what evidence you would need, and what it will cost.

If your husband and his mother have a rocky relationship, this may be the reason that she has chosen to leave everything to the other son. 

The issue of the house is another matter. If she has already given your brother-in-law the title to her home, her will is not going to make any difference. Her will only governs what she owns, and if she has transferred the title, she no longer owns it. Understand that challenging her will would not affect the home if she has in fact transferred it.

The more likely situation is that she  has added her son to the title of the house as a joint owner. I say that is "more likely" simply because that move is one of the most popular (and most misguided, but that's another story) home-made estate planning moves of all time. This is what parents usually do, thinking that the home will transfer automatically to the joint owner, in this case your brother-in-law, on the parent's death.

If she has added your brother-in-law as a joint owner, this is going to be a problem for her estate, but may well work out in your favour. The law in Canada regarding inter-generational joint assets has changed. It now says that in a case where a mother adds her son to an asset she already owns, on the mother's death that asset is held in trust for her estate until it is determined whether it is a true joint ownership. This would at least give you the chance to bring evidence if there was coercion or other problems.

1 comment:

  1. My husband's uncle and his family scammed my husband's grandfather and at 88 years old he had to go bankrupt, RCMP are aware and a case is on going. Heartbroken and furious the grandfather disinherited and took the uncle off the will leaving my father-in-law as sole beneficiary. Recently the grandfather died, in the will there was a few hundred dollars(my in-laws are paying for the funeral costs out of their own pocket, they would even if they were not named in the will), and a few possessions. Also there is a very large life insurance policy, the uncle was taken off of, that I'm not sure if it's in the will or on the side. Before the grandfather changed the will he went to the dr to be assessed for mental competence to change the will then the lawyers talked to him in length to make sure he wasn't being coerced into changing the will, which I assure you he wasn't. My in-laws looked after the grandfather for 15 years...did not ask for any money, so the grandfather did not need to pay rent, utilities or for food. They also paid sometimes his vehicle insurance and gas. My father-in-law was told to place the life insurance money in a trust account as he is worried his brother will sue him for part of the life insurance. My question is can the uncle sue his brother for part of the life insurance if it wasn't in the will?


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