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Friday, May 22, 2015

If your spouse dies, leaves you nothing and gives it all to his kids, should you contest the will?

If your spouse dies and leaves you nothing and leaves everything to his/her kids from a previous marriage, should you contest the will? What if you're unwell and can't work? This is a question I hear frequently from many readers, with a thousand different fact situations. One reader put the question very succinctly, and I thought many of you would be interested in reading the answer. The question and my reply are as follows:

"My mother-in-law was widowed recently and was left no money to live on. She is physically unwell and we don't know if she should contest the will or not. Her stepchildren will receive money, but not her or her children (from a previous marriage) Any idea of what we should do?"

On the face of it, I would think your mother-in-law is a good candidate for a claim against her husband's estate. As a general rule, a person cannot leave his or her spouse out of their will completely, but the answer is not that simple.

A person CAN leave his/her spouse out of their will if:
a) the two of them signed a pre-nuptial agreement that specifically stated that each would not leave their estates to each other. Pre-nuptial agreements are not always iron-clad in these situations, but they are a good starting point.
b) the person gave assets to the spouse outside of the will, such as a life insurance policy, RRSP, or joint property that adequately provide for the spouse. Again, it's not iron-clad, but it's about as strong a case as the person could have.
c) the spouse left behind is independently wealthy and doesn't require anything from the deceased spouse's estate.

It appears from your question that none of these circumstances apply to your mother-in-law, and therefore it's probably a good idea for her to make a claim against the estate. This is not quite the same as contesting the will, because she wouldn't be trying to invalidate the whole thing; she would just be trying to get a share of the estate for herself before it's divided among the stepchildren. This type of claim is called "dependent's relief" and exists in every province and territory of Canada. It's done pretty frequently and most experienced estate lawyers have dealt with them numerous times.

It's possible for a spouse to get some of the estate, or all of it. The judge hearing the case would decide what is appropriate based on a number of factors. Some of those factors are:
- the length of the marriage.
- the value of the estate - in other words, how much is available to go around.
- the financial needs of the spouse who is claiming - this would include, for example, the fact that your mother-in-law is unwell, which probably means that she needs care and/or medications, and cannot earn a living.
- any competing claims - in other words, there may be other dependents who are trying to get a larger share of the estate, such as any of the stepchildren who are still minors, or who are disabled.

As a suggestion, your mother-in-law could hire a lawyer to write to the executor and advise that your mother-in-law is going to make a "dependent's relief" claim against the estate. If her case is as strong as it appears to be, the estate lawyer may suggest to the executor that he make a settlement offer. This would end up being cheaper and easier and quicker for the estate than going to court to fight it out. These days, beneficiaries are getting pretty sick of seeing their inheritance eaten up by court costs, and they just might be ok with settling it without a court battle.

It's not a good idea to wait too long. The executor should wait six months after probate before distributing the estate (because of your mother-in-law's right to claim) but it's better to get moving quickly to ensure estate assets don't disappear.


  1. My mother died 16 years ago. At the time of her death I was 16 years old and my sisters were 10 and 18. She had been remarried for 2 years. Prior to meeting my stepfather she had purchased a house independently of him. After they were married they bought a house together and kept her house as a rental property. When she died the insurance company paid off the balance on the mortgage of her house and he continued to collect rent money from the tenants for approximately 4 years until he sold the house.
    My sisters and I are unsure if there was a will in place and have not received any financial support from our step father who is now remarried and not part of our lives.
    My first question is: Has too much time gone by to contest the distribution of her assets?

    And if not, What recourse do we have?

    by the way we live in Ontario


    1. It seems unlikely that your mother owned assets but didn't make any arrangements for them to go to her children.

      Since she owned a house in her own name, the house could not be transferred to anyone else unless someone had been given a grant of probate (if there was a will) or a grant of administration (if there was no will).

      You need to start with fact-finding. I would suggest two things. First, search the title to the rental property to see if her name is still on it. Second, search at the probate court nearest where your mother lived to see whether any probate or administration was granted to anyone. Get a copy of the full application, including the inventory of the estate.

      Using those documents, you should be able to tell what happened with the house, and whether you were entitled to receive anything from your mother's estate.

      As for whether it's too late to do anything, that depends on what you find out. If she left a will leaving everything to her new husband, yes it's probably too late. However, if you find out that the house was held in trust for you and your sisters but you never received it, it's probably not too late.


  2. Hello Lynne,
    I have been reading all of your blog posts and the comments with great interest. Here is my question.
    I am the executor of an estate, a farm to be exact. I haven't applied for probate just yet, but am getting very close. As there are a large number of livestock on the farm and it will be expensive to feed and look after them at calving time, can I arrange for them to be sold and the proceeds placed in the estate account and held there until distribution which could be many months or must I arrange to hire someone to look after them.


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