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Monday, August 29, 2016

Testators can't ask the impossible or illegal in their wills

Did you know that you do not have the right to put absolutely anything you want in your will? We all know that there are certain people that you cannot leave out of your will without a huge risk of your will being contested, but did you know there are also limits based on public policy? We have a set of rules for wills that impact each and every one of us.

For example, what if your will left out one of your kids who thought you did so because his or her spouse was of a different race? What if you left your estate to a racist hate group? Would these instructions be allowed under Canadian law?

Recently I was interviewed by about testamentary freedom, which is the phrase that describes a person's freedom to say what he or she wants in his or her will. There have been two cases lately in which Canadian courts had to make a decision about the limits on this freedom. In both cases there were allegations of racism in the will. In this interview, I discussed the two cases and what they offer in terms of clarifying the limits.

To read the interview, click here.


  1. Haha, that reminds me of what my father would have liked to say in his will.

    After years and years of my brother (his eldest son) nicking things from our parents' house to give his buddy - everything! tools, dishes, furniture, household items, even the best dog bed, - Father said that (knowing the kid would give everything away to his buddy) he wanted to put in his will that Eldest Son was not to inherit one cent until Buddy was dead.

    Of course he never did it, and like huge numbers of people, he died without a will leaving Mother to sort it all out as best she could.
    But still, he died wishing he could put that clause in a will. :-)

  2. Can the executor use the deceased line of credit to pay probate, house expenses etc. My sister moved in to the house for months, did not get our permission. She also failed to report moms death to the bank. Can we make her pay cash advances from moms account s while dying in the hospital? She also is asking for 28,000 in executor fees. We think 8000.00. we don't want to give her anything, due to her actions in handling the estate. One house was only asset. Also, the lawyer has been hired to do accounts, but now states she assisted with them. She would also be aware of failure to notify bank. What happens if we refuse to signs releases, which were sent without cheques? This is interim accounting, with 100,000 being held back.
    Thanks Lynne,

    1. Hi Stacy,
      It is alright to use the deceased's assets to pay necessary expenses of the estate, such as the probate fee and the upkeep of the house. Sometimes there just isn't any other cash available and the estate would simply stagnate if the executor didn't use estate assets.

      However, the executor does not have the right to live in the deceased's house for months. Nor can she use estate assets to pay for things like the phone while she is living there. The estate can only be used to pay for things that maintain the capital asset (i.e. the house) such as insurance, property tax, and repairs. She is not entitled to take cash advances for her own use on things like food or gas.

      The house is supposed to be sold ASAP, and perhaps it was. It is not a convenient place for an executor to live for several months unless she wants to pay rent to the estate.

      If the house was the only asset, why are you making a fuss over her not reporting your mother's death to the bank? If there was no account there would be no reason for her to notify them.

      The appropriate fee for her to take falls somewhere between 1% and 5% of the estate. With only one asset, it should definitely be 1%. She can also claim expenses. If the lawyer did the accounts, even if she assisted, she must give up some part of her executor fee to cover the lawyer's fee.

      The releases are always sent without cheques. If they were sent with cheques, nobody would sign them.

      If you don't sign the releases, the next step is for the executor and the beneficiaries to try to come to an agreement on the issues in dispute. If no agreement can be made, the executor may choose to pass her accounts through the court. That is no threat to you by any means, but it does mean that the estate will be reduced because the lawyer's fees for the passing of accounts will come from the estate.


    2. Thank you Lynne,
      Mom had chequeing account, savings account, line of credit, and the family home. Sis separated from husband and moved in. She had taken 4000 in cash advances from line of credit. Did not notify bank about death, failed to have insurance for seven months. There is no documentation for the cash advances. At this time, we have requested relevant documentation for all accounts, to no avail. She states that the bank allowed the probate fees, then closed the account, however, the account was not closed until house sale, so line of credit could be paid. My brother and I have been upset as sister buried moms remains, but failed to let us know until after the fact. We tried to help our sister, but she refused all offers. I offered to pay moms funeral, but she vetoed that as well. Months later, she asked for cash for estate bills, buy I could not help her. She got angry, and now had caused irrevocable harm to family relationships with the family. We are so tired about people telling us to sign the release, when we haven't received all documents for estate. I just want to be prepared and do not believe that the 30,000 executor fee is appropriate.
      Are you available for hire in Toronto, should this go to court Lynne?

    3. Sorry about so many questions Lynne,
      We all had an agreement, that whoever did the executor his, that no fee would be taken. I forgot that the reason about my fuss over the bank notification, was that mom received an annuity after dad died, but sister kept receiving it for four months after mom died. My brother and I do not want any liabilities coming back on the estate. Also is it normal practice that the beneficiaries agree to assume any future liabilities with the executor? I told my sister to change that to include only her self.
      Also, I am okay with paying you for your assistance with these questions. Thanks

  3. HELP! My father left my sister in charge of my inheritance and I don't trust her (long list of reasons why..) and I want my funds to be handled by someone I can trust until it becomes accessible (in 7 years) - what can I do about this? Thanks in advance!

    1. Hi Waxy,
      I assume that your father has passed away and your sister is the executor of his estate.

      The bottom line is that you don't get to choose who handles your money. She was chosen by your father to handle the money. If she steals, embezzles, or otherwise mishandles the money then, sure, you can go through the courts to get rid of her, but otherwise there isn't much you can do.

      Make sure you are familiar with the terms of the will that sets up your trust. There may be provisions that allow the funds to be paid to someone else on your behalf (rare, but possible). Also, knowing what is supposed to be happening with the trust will make it easier to spot anything out of whack before it gets too far.



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