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Tuesday, November 14, 2017

Blended families and the passage of time both complicate estate claims

Real life is messy. That's just a fact. It's not always possible to give "yes or no" answers to questions because there are so many intertwined rules tangled up with complicated facts. A reader wrote to me with a really interesting question about a family that split up a long time ago. Following are the question and my comments:

"My dad's parents separated before he was born. His birth father remarried and had one son. My dad didn't have a relationship with his father until he was an adult. His half-brother mentioned some items being left in their father's will to my dad but he has never received them. He doesn't know if anything else was left to him. Does he have a right to part of the estate even if he wasn't named in the will? The second wife outlived my dad's father. Would that in anyway effect my dad inheriting or his ability to contest the will? My dad's not interested in "rocking the boat" but I would have no qualms about looking into it after my Dad dies. How do I go about getting a copy of the will?"

There are several things to consider here.

Something that you did not mention in your note is adoption. You did not say whether your father's mom re-married or if she did, whether her husband adopted your father. I'll therefore assume that he was not adopted by anyone. If he had been adopted by anyone, the discussion would end right here, since he would legally no longer be the son of his biological father and obviously would have no claim.

Whether your father has a right to a part of the estate other than what the will gives him is doubtful. If your grandfather had died without a will, there could be a claim that your father had an equal right with other biological children. However, there is a valid will, so your father would have to prove that for some reason he was entitled to a share even though he was not given one. Most people think that parents must leave their estates equally among their children, but that is not the case. There is no obligation to leave anything at all to an adult child who is not financially dependent on you, and who is not physically or mentally handicapped so that he could not earn a living.

Even if your father was for some reason able to bring a claim, you said that your grandfather's wife outlived him. Most likely the bulk of his estate went to her. Any claim brought by your father would have to be stronger than her claim as a wife since they'd be competing for the same assets. This of course, refers to a claim against the residue of the estate. If your father was specifically left certain items, he need only show up to receive them; he does not have to compete with anyone to receive those gifts.

Another fact to consider is that it's likely that your grandfather and his wife owned many of the assets as joint owners. Most spouses have both names on the house and the bank account. If they did, those assets wouldn't even have been in your grandfather's will. Neither would assets with direct beneficiaries such as his RRSP or life insurance policies. It's pretty common for married couples to set things up between themselves so that if one dies, the other one automatically gets to keep the bulk of the estate. In other words, there might not be much to make a claim against.

As for getting a copy of the will, you have two choices. You can ask the executor of the estate for a copy. You are not a person who is entitled to see the will so you cannot force the executor to give you one if he or she doesn't want to. Don't be surprised if this request is refused. Your father, on the other hand, has reason to believe that he is a beneficiary under the will and is entitled to ask the executor for a copy. Your second option is to do a search at the probate court to see whether one has been filed there. Once wills are submitted to probate, they become public documents. Not all wills are probated but it is worth a shot.

It sounds as though your father is not interested in contesting the will, which is probably for the best given the reasons I've outlined above. You, however, sound as though you might wish to do so. I can tell you that the passing of time does not help estate claims. Estates are distributed according to the information at hand. Over time, property disappears or loses value. Documents are destroyed or lost. People pass away and items in their possession are disposed of without anyone necessarily knowing that one day someone might show up to contest an old will. None of this gets any easier as time ticks by.

In any event, you are not a person who has any right to contest your grandfather's will. You personally have no claim against his estate. If your father names you  under an Enduring Power of Attorney and if that POA is actually activated while your father is alive, you could look into it for him. In particular, you  might ask about the items mentioned by his half-brother. Alternatively, if you are the executor named in your father's will, after his death you could look into it. But as I've said, even if there is some basis for a claim, which I doubt, there is the problem that there will be no assets left to claim against.


  1. ``Your father, on the other hand, has reason to believe that he is a beneficiary under the will and is entitled to ask the executor for a copy.``

    Does an adult child who is not a beneficiary have the right to a copy of the will.

    The will explicitly names and excludes them. Should they just be sent an extract with relevant paragraph

    1. Sending an extract as you mentioned is usually sufficient. As they are not beneficiaries, they do not have an automatic right to have a copy of the will.

      However, be realistic. Keep in mind that if one of the beneficiaries is contesting the will and you have to be forced by the court to give him/her a copy to use for that purpose, you could end up paying costs for the court application.



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