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Tuesday, February 18, 2014

Mom's estate went to second husband, then to his girlfriend, kids got nothing

The fact that a marriage is a second marriage is much more important to estate planning than many people realize. Many people who have children from an earlier marriage make the disastrous mistake of leaving their entire estate to their new spouse, trusting that the new spouse will look after the children in his or her will. If you only knew how often that trust is misplaced, you would be horrified.

Time and time again, parents who fear insulting their new spouse by suggesting that they might not look after the step-children create situations that lead to their children receiving nothing. A reader recently wrote to me and described that situation. All of her mother's estate went to her step-father, and eventually to the step-father's live-in girlfriend. It is extremely unlikely that this is what the reader's mother wanted. Her question and my response are below:

"When my mother passed away she left no will and her estate went to my step father. And now that he has passed away, I received a copy of the will 6 months later from the probate lawyer. In the will I was deliberately left out and the person who my step dad was living with got it all, as well as having convinced my step dad to give her power of attorney. Now the reason given was that I had caused him grief allegedly and that he hadn't seen me in a very long time, which is an outright lie. Can I contest the will?"

I am assuming that your step-father did not adopt you, as I'm sure you would have said so if he had. While adoption would not necessarily change anything, it would at least give you the legal status of being his child rather than his step-child. As cold as it may seem, step-children don't have legal rights to step-parents' estates, even if that step-parent raised them from babies. So, you cannot contest the will based solely on your relationship to him. 

Legally, your step-father doesn't need a reason to leave you out. 

To change the topic slightly, you have suggested that the live-in woman "convinced" your step-father to give her power of attorney. I don't know how you could know it was her idea and that she persuaded him. However, it does happen, and it suggests that perhaps she also persuaded him to change his will in her favour. If she did convince him to change his will, that is something you can contest. It is called undue influence.

The problem with a lawsuit like that is proof. How do you get a copy of any earlier will that left something to you? Do you even know for sure that there was an earlier one? How do you prove your step-father was pressured? This is really difficult stuff to prove. It appears his live-in is prepared to battle that out with you, as she has already given a story (that may or may not be true) that is intended to support the idea that your step-father had a real reason to exclude you.

If you honestly feel that your step-father was coerced into removing you from his will, find a local lawyer who specializes in estates, and go in for a frank discussion of what it would take and what it would cost.

It's really very unfortunate that your mother did not make different plans. Obviously she trusted her husband to look after you, as she did not make a will of her own. She is not the first spouse to make the mistake of being too trusting. Most lawyers who deal with people in second marriages will strongly suggest ideas and plans that ensure this doesn't happen to the children of the first marriage. I know this doesn't help you now, but I want to make sure you realize that your mother would surely have made a will leaving part of her estate to you had she known that you'd be treated this way.





4 comments:

  1. Firstly,sad to say that your mother did not write a will. Since nothing can be done in that respect, its better to get the help of a Commercial law firm in Canada who deals with estates and wills.

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  2. My mother passed away 2 years ago and did not have a will. One of my 5 siblings applied to be the Executor of her estate and took the lions share of her personal items that she had previously verbalized would go to others. At the time of her death, she was married to my step-father and he received 60% of her estate and remaining was split 7 ways, with him being the 7th recipient. At that time, my sister that I mentioned convinced him to make a will and name her as his executor. He passed away 2 months ago and left everything to that sister. Being that the bulk of his estate was from the proceeds of my mother's estate, do I have a case to contest the will? My sister did care for his needs although he lived in a care home and I do feel she deserves a greater portion but the rest of her siblings have received nothing and that her influence over my step-father because he depended on her has resulted in our not having received what was truly funds from our mothers estate.

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    Replies
    1. You're not going to like my answer, I'm afraid. Once your mother passed away and her estate was distributed, the assets are no longer hers. You have to stop thinking of them as "truly" your mother's estate. It doesn't matter now where your step-father got his estate, because legally it's his.

      In my view, you have no standing at all to contest your step-father's estate, particularly not on the basis that it was really your mother's estate. If you had an issue with the distribution of your mother's estate, you would have had to contest HER estate, not his.

      It's possible that your sister has influenced your step-father. It's possible that his natural children (if he has any) might well have a case to contest his estate. However a step-child does not have that right, unless you were adopted by him. In law, you are not his child, and you haven't said that you were financially dependent on him.

      I'm sorry this isn't the answer you wanted, but this is how I see it.

      Lynne

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    2. Thank you for your reply. It at least lets me know that I should just accept that one of my siblings is a greedy you-know-what and that the rest of us just have to move on with our lives.

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