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.