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Sunday, June 25, 2017

Can a 30-day survivorship clause be challenged if it lets property go outside of the family?

Sometimes a person who leaves behind a valid will has talked about his or her wishes to family members. Unfortunately, that conversation can lead to problems, especially if you talk about your estate in a way that seems contradictory to  your will. This happens more than people might think, and even those who think they are communicating clearly can be misinterpreted.

A reader recently raised this topic here on this blog. Below are his question and my comments.

"Curious if a 30-day clause can be contested. My aunt recently passed and left her estate equally to my dad and my other aunt. My other aunt has just passed away from cancer and based on the 30 day clause, her share of her inheritance will go to her new husband. She has left her entire estate to her new husband. Both aunts didn't have any children. There was a 30 day clause in my first aunt's will that if either my father or her sister died within 30 days, the estate will go to the other living sibling. The time between their deaths is closer to 40 days. Can and should my father contest the will? What does the law say on this type of situation? My first aunt wished to keep her estate within the family, but this was said verbally."

The 30-clause that is being discussed here is standard in wills, and is usually referred to as the "survivorship clause". It says that if a beneficiary under the will does not survive the testator (the person whose will it is) for 30 clear days, then the beneficiary does not inherit the gift and it goes to someone else. If the beneficiary does survive for 30 clear days, then the beneficiary does inherit the gift. This type of clause is intended to add certainty and to streamline the estate administration process, particularly in cases where there is a common accident which causes multiple deaths.

I don't know off the top of my head any cases which challenge the survivorship clause on a basis similar to what you have mentioned. The basis appears to be a concern that the outcome of the estate distribution does not match what the remaining family members perceive to be the wishes of the deceased person.

I can tell you this, however: where there is a valid will left behind, the law considers it to be the last wishes of the testator. That is, after all, its entire purpose. It is up to each of us to ensure that the will we leave behind says what we really mean. There are two possibilities here. One is that you're wrong about what your aunt wanted and she was perfectly okay with the beneficiary's husband getting the property. The other is that your aunt failed to communicate her wishes, which is her responsibility.

In my opinion, a verbal wish that property be kept within the family is less than useless as a reason to contest this will, for a couple of reasons. The first is that it's verbal. Our wills legislation in all provinces and territories in Canada require wills to be written down. The second is that the phrase "within the family" is pretty vague. One might well argue that a person's spouse is part of their family, after all. Your interpretation of the word "family" is not the one that matters when we are talking about someone else's will. This means that even if you somehow pulled off a miracle and persuaded a judge that a verbal statement should form part of the will, you're stuck with a verbal statement that is open to wide interpretation.

Will challenges are not easy. They take years to get through the courts and cost tens of thousands of dollars for each person involved. They should not be undertaken without strong proof. It may seem to you that the way the estate is being distributed is not what your aunt wanted. You may even believe that "everyone knows" it's not what she wanted. But you have to remember that what sounds right to a small family group around the dinner table is just not enough for a court of law, especially when her own will contradicts you.

On the facts you've presented here, I just don't see a valid reason to challenge a will.

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