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Sunday, January 25, 2015

My uncle hasn't contacted family for 20 years. Can he contest being left out of my grandmother's will?


Nothing illuminates a family estrangement like the death of a parent. Does a person who hasn't contacted his family for twenty years have a right to be included in his parent's will? A reader recently wrote to me about this. Her question and my answer are below:

"My grandmother's will was made up in 2013 and notarized when my grandmother was mentally stable. The entire estate goes to my mother, and 5 thousand to each of the grandchildren. My mother's brother is not in the will, he never attended any family events for the last 23 years. He also did not show up to my grandfather's funeral or visit him in the hospital before he died. My grandmother is dying and will not live long... a matter of days. My mother is giving me my grandmother's condo after all is settled with the funeral and further arrangements. Should I be worried about my mother's brother who will for sure try to claim money, even though he is not in the legal will, and has not even seen the family in over 20 years?"

The first thing I have to say about this situation is that when a family member doesn't see his parents or siblings for years, the separation doesn't affect his legal rights nearly as much as people want it to. Yes, it may feel unfair to share an inheritance with someone who doesn't appear to be affectionate, or loyal, or caring. But legal rights are not about how things feel to other people, so let's talk about various rights and obligations in a legal, not an emotional, context.

If your uncle is going to make a challenge to this situation, he will have to do so at the time the will is sent to the court for probate. If the will goes through the courts unchallenged, and your mother inherits the bulk of the estate, she can do what she wants with it. She can give parts of it to you if she wants to. Your uncle certainly has no claim on what your mother owns or what she does with it.

So, let's examine the possibility of your uncle challenging the will at the time of probate. You said that your grandmother had mental capacity to make a will. This may be where the challenge comes from. It's pretty common for a child of the deceased to claim that he was only left out because the other child trash-talked him to the parent and convinced or forced the parent to leave him out of the will. This is called undue influence, and it's effective when a senior is weakened or ill.

If this is where your uncle chooses to make a challenge, I think he will find it extremely difficult to succeed. The fact that he hasn't been around for years will work against him, as he will have no personal knowledge of whether or not your grandmother had testamentary capacity, or of the relationship between your  mother and your grandmother. Your brother would have to rely on evidence from other parties, such as your grandmother's doctor, in the hopes of finding that she was debilitated by dementia, prescription drugs, illness, or some other factor that weakened her.

If the lawyer who drew up the will did a decent job, he or she would have made careful notes in the file about your grandmother's ability to understand what she was signing (yet another reason that home-made wills are easier to challenge),  When I've made wills for seniors who anticipate that one of their kids is going to be unhappy with the will, I've sometimes enlisted the help of the senior's family doctor by getting a doctor's letter backing up my assessment that the senior had all of his or her faculties when the will was done. Your grandmother's lawyer may have done something similar.

Additionally, the will was not made on your grandmother's deathbed but was made more than a year ago, which suggests that if she didn't like the arrangement she had made, she could have changed it.

Assuming that your grandmother did have the proper mental capacity when the will was done, she has the right to dispose of her estate as she sees fit, within certain parameters. She is not allowed to ignore anyone who is financially dependent on her. This generally includes a spouse, a minor child, or an adult child with a handicap that prevents him from earning a living. Obviously your uncle doesn't fall into the first two categories. Nothing you've said would suggest that he falls into the third category either, particularly since it would be hard to show you're financially dependent on someone with whom you've had no contact for twenty years.

Therefore, your uncle would also have a pretty impossible time claiming that he is automatically entitled to a share of your grandmother's estate. The exception to this rule exists in British Columbia, where an adult child left out of a will can contest the will on fairness grounds.

I can't say for sure that your uncle won't try to launch a lawsuit to challenge the will, though it seems to me he doesn't have much of a chance. However, any estate fight is an expensive, ugly, upsetting test of endurance, even when you win. I might suggest that if he is determined to get something, your mother might consider going to mediation with him to work something out. It would probably be cheaper for her in the long run, not to mention less upsetting and less time-consuming.



2 comments:

  1. Thank you very much for your detailed and quick response. I am grateful. My uncle is not sick or dependent in any way and we are from Montreal Quebec. He moved to Arizona 30 years ago and has not returned since. I really hope that things do not get nasty. With a legally signed will I am guessing he won't have much to contest. It was my grandmother's wishes to change the will, because my uncle never visited my dying grandfather... Its crazy how some people come to try and make claims at a time like this when they do not really care....

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    1. The fact that your family is in Quebec does actually change things. If the will was properly signed and notarized, it won't go through the probate process. Quebec has a civil law system that is completely different from the common law system followed in the rest of Canada.

      In any event, I agree with your comment about people showing up to make claims. I wish I could say it's rare, but it's not. It happens every day, and it's one of the things that make estates so upsetting and difficult for people who are already grieving and just don't need the extra stress.

      Lynne

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