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Tuesday, July 20, 2010

Can I leave my child out of my Will?


When planning their Wills, parents usually put quite a bit of thought into what they want to leave to their children. Occasionally a parent doesn't want to leave anything to a particular child. There are plenty of good reasons for this. It could be because the parent and child are estranged. It could be because the parent gave the child quite a bit of financial help while the parent was alive. It could be because the parent really wants to leave it to someone else (either a person or a charity). Perhaps the parents have left an insurance policy or other property directly to that child.

Whether or not a parent would be successful in leaving a child out of the Will depends in large part on whether the child is either a minor, or an adult child who can't earn a living because of a handicap. Children who fall into those two categories are considered to be financial dependants of the parent and can't be left out of the Will without a significant risk that the Will would be contested.

Because adult children who are not handicapped do not have an automatic right to contest the parent's Will to get a larger share, the parent does not legally have to leave the child anything. This is an area where real life isn't as simple as the legal rules. A parent who leaves a child out of a Will is going against the expectations of the child and likely of everyone else. A child who is left out of the Will generally feels punished and wonders what he or she did to upset Mom or Dad.

Plenty of people think it's the law that they must leave their estates to their children and that they must treat all children equally in their Wills, but it isn't. It is, however, a strong cultural tradition that children inherit from parents, so if the parent plans to do something else with the estate, he or she is working against a very strong tradition and an even stronger expectation.

Whenever a client of mine wants to do something in a Will which may not seem logical or obvious to other people, I include a clause that briefly explains the person's reasons for taking this route. For example, if a parent were to leave a child out of the Will, the Will would contain a sentence or two giving the facts that the parent won't be around to give in person. It could say that the parties are estranged, or that the child has already been supported by joint property given to him or her. The purpose of including a clause like this is to make it clear to anyone reading the Will that the testator had put thought into the decision, knew that he or she had a child who expected to inherit, and that he or she made a different choice anyway.

Sometimes Wills are attacked on the basis that the testator (in this case the parent) didn't "know what he or she was doing". Having a rational explanation included goes a long way towards refuting that kind of claim.

If you are thinking of leaving one or more of your children out of your Will, please talk to an estate-planning lawyer about this. If you want to do this because of an ongoing problem between you and your child, also talk to the lawyer about how you will be able to protect yourself financially if you should lose mental capacity.

81 comments:

  1. My will is drafted, but now both adult children have estranged themselves from me, their mother. Is it possible to draft a codicil to adjust who inherits to my grandchildren? A young man I know and trust has agreed to be Executor of my will, power of attorney and living will. My son indicated he does not want next of kin status, so, since he no longer wants an association with me, am I able to adjust as well by codicil? I plan on a structure stipulating that if the will is contested that the person contesting can only be awarded the sum of $5.00

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    1. Hi Lena,
      A codicil is an amendment to an existing will that confirms the will but makes only a small change. If you're changing the executor, changing the beneficiaries, and adding extra clauses, that is not a small change. You need a whole new will.

      I think you'll find that not many lawyers do codicils anymore since they were designed to prevent having to create a whole new document by hand or by typewriter. Since they're all done on computers now, codicils are quickly disappearing.

      As for the changes you want to make, yes, you are entitled to make them.

      I am somewhat concerned about your comment that there is a young man you know and trust who will act on your behalf. If this is someone you've known for years, such as a nephew or a professional such as a lawyer or accountant, that would probably be ok. However, call me cynical if you will, but my warning bells ring when unrelated young persons volunteer to do all that work for no return. Could you consider using a trust company? I don't know your financial situation so I don't know whether that's feasible, but I just don't want to see anyone take advantage of you.

      Lynne

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    2. Late reply. Sorry. The young man I've known since his birth. His family has been family to me. I'm planning on allowing a monetary award for his duties. Since I need to find a secure way to restrict my children from handling any money on behalf of their children (the beneficiaries), I will likely set up a trust situation between the lawyer and the bank, stipulating any funds go directly to serve the child's needs...say, for a car, university,etc. I feel terrible bypassing my children, but I wouldn't feel safe otherwise. Thanks for the help. Perhaps, if you agree, I could choose you to rewrite this will??

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    3. Which province are you in, Lana? I'm in Newfoundland and Labrador. If you are as well, I'd be happy to write your will for you.

      Lynne

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    4. Hi Lynne,

      I was told I need to write a declaration stating that I made no mistake leaving nothing to one of my children when I first madey will in 2009. I am having a hard time wording such letter. Any links to show me a template. I'm in Ontario.

      Renee

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    5. Hi Renee,
      To whom would that declaration be addressed? I have never heard of anyone writing a declaration like this before. Is it meant to accompany your will?

      Lynne

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    6. Good day Lana,

      I would like to share with you personally from my heart. I have made myself in a very successful person, in my eyes and i really dont like this fact of wealth.

      Personally, I would never leave any child out of the WILL, never no matter what happens. This will destroy your family lineage FOREVER.

      I Grew up in a home where my entire family used me as an escape goat. I didnt even know what a swear word was, nor wanted to use it. I have always worked for my family, day and night... and they kept treating me like complete garbage. I didnt not, nor could not understand the difference because I was always placed in the position since a toddler to serve them and i had no privacy, all my ideas were garbage, friends i made were garbage, my school marks were garbage..... I was severly miss-treated, but when they would constantly ( all family members) would attack me physically, mentally on daily basis.. My teachers never called children's aid when i would go to school with broken lips and scares on my face..... What hurt the most is that fact that i was treated like this.

      I have been trying now, to connect closer to my family but they turn everythign around and claim victim themselves. They turned my entire relatives against me , making up stories with half-truths and stating un-thinking things about me... Many times i wanted to commit suicide, but i can feel my soul deep inside and that gave me strength...

      TOday, i am worth just as much as my father, as they put money before anythign else. And, to be honest, I dont like money, i Hate it for what it does to people and what it has driven to what may family has done to me.... Today, i have only new friends and a very ugly past, that i didnt really do anything... they dont care.

      The last testament is your last statement of existance on this earth. You bore children equally, God gave them to you, giving in your Will (last existance on earth) is not only grudges, or hurtful feelings.... its about the last peice of mends to make with your children.

      I may never feel happiness with my family, and inside it really hurts and emptieness that will never be replaced with anything...

      but i dont want the same mistakes to be made by others.... I always wanted loving family, please make your last Testament about your past wishes of love, as god loved you to give you children.

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    7. You have gone through the same type of upbringing as me. Albeit, without the money part. I concur that abusive parents should not exclude children from their will as a form of a last stab in the heart of a child who did do so much for their parent, but were disrespected for it and made to become their scapegoat. I would like permission to use your post as a discussion about this very topic, of parents forcing children to estrange to keep their sanity, and then being cut out of the Family will out of spite, and another stab in the heart that they did not ever deserve. May I?

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    8. GeminiSunLeoMoon,
      My posts can always be quoted or cited with a link back or credit given. No problem.

      Lynne

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  2. Good evening Lynne!
    My oldest child and I have been estranged for the last 2 decades (his choice) and his father and I want to leave him out of our will completely, but, leaving only a few of my favourite pieces of jewellery to his children. Can we do as you suggest and include a comment in our will(s) stating that due to the estrangement that was of his making, that we are choosing NOT to include him in our will(s), but wish for our grandchildren to each have a piece of jewellry each that have come down 4 generations in both of our families?
    I am okay with our decision, but, do NOT wish for our other son to be harrassed by his older brother in regards to this...

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    1. Certainly you can. Having a few words in there to explain your decision will give your executor son the back-up he needs if he is questioned.

      Lynne

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  3. Hello Lynne,
    My sisters and I were abandoned by our father when we were all quite young, he has chosen to have no part in our lives and never supported us in any way. We recently learned he is living in BC and my question to you is, do we have any claim to his estate on his passing? And if so, how does one proceed?

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    1. If your father dies without a will, you and your sisters will share in the estate because you are his biological children.

      If your father makes a will that does not include you, and you and your sisters are all adults, you probably have no claim on his estate at all. He is not required to support a child who is an adult. The fact that he did not support you during your lifetime is not particularly relevant to the discussion because it's not as if you can bill him for the support you would have received if he had been a hands-on parent.

      Lynne

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  4. My parents recently passed away first my mother, just before she passed she had told me the will was a 4 way split and that I was joint executor with my brother. After her passing however my Father must have changed the will to exclude me and my 2 other siblings. My brother now being sole executor and everything going to him. Since all 3 of us left out of the will are adults and are not dependent I understand our parents aren't obligated to leave us anything but since my mothers wishes were clearly stated before her death and that was changed after is that grounds to contest? We are in Alberta

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    1. When your mother died, did she not leave her estate to your father? It sounds as if her will said that the estate would go to your father, but if he had died first then the estate would go to the 4 children. It's impossible for me to know when I haven't seen the will, but that is how the majority of wills are set up for married people.

      If that's the case, then your mother's wishes were carried out exactly as she wanted. Her estate went to her husband. After that, the estate is his and he can change his will or not, as he pleases. Though many family members interpret the will as saying that when the second parent dies it all goes to the kids, the legal reality is that your mother could not legally control what your father does with the estate. She could only do that by a) putting the entire estate in trust (which wouldn't work if they owned joint property or she named him as beneficiary of RRSP etc) or b) they signed a special sort of will called a mutual will, which is extremely rare.

      I know this is hard to accept and it's something people ask me all the time, but her wishes WERE carried out. Go look at the will again, and I bet anything it says there is only a 4-way split "if my husband predeceases me". Since he outlived her, the instructions for the split don't apply.

      Based on what you've said, there are no grounds to contest because your father is entitled to change his will.

      Lynne

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  5. This comment has been removed by the author.

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  6. Great post,thank you for sharing this with us!
    These days the value of Estates and property is increasing considerably and so disputes over the distribution of estates in the Wills have also escalated.Therefore most of the people need wills and estate lawyers to resolve their cases easily.Disputing A Will

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  7. Prior to my Mother's death she distributed the bulk of her estate to each of her 10 children. As she did this she would update her will with a codicil to put on record whom had received their portion of inheritence and any children not recorded would receive their equal share before any remaining balance left in the estate was equally distributed with all. The problem is there was no final update to the Will to record that the last 4 children received their share of inheritence so at the time of death they are still listed that they will receive the amount paid the other children first before the remaining balance will be divided equally. As her executor how do I proceed?

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    1. Your duty as executor is to set off each sum of money that was received by your siblings. Though your Mom was trying to support that by doing codicils, they are not necessary if you can establish that the inheritances were actually given. Do you have anything that proves she distributed funds or property to the last four, such as cancelled cheques? If you do, you can proceed on the basis that those four have received their shares.

      As always, the co-operation of the beneficiaries will impact how you go forward. Hopefully they will do the right thing and be honest if they have received their shares already. If so, just proceed to divide the estate equally.

      Lynne

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    2. I live in Victoria,Bc and my Dad recently passed away leaving my 3 brothers and myself in his will to split his estate. My sister was left out of the will as my dad felt he had done more for her over the years and the last 8 years of his life she had become distant from him and never even called or visited him even though she lived close by. She is now threating us that she will contest the will and she will drag us threw court if we dont give her an equal share. What advice do you have? Thanks Terry

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    3. Hi Terry,
      This is actually a pretty complicated issue. A parent can successfully omit one child from an estate, though it's not always guaranteed that the provisions that omit the child would stand up legally in court. The province which allows the most challenges by the children is BC because it has different legislation than the rest of the country. It allows a child to stand up and say "it's not fair that I was left out".

      The fact that a parent has done more for one child than the others during his or her lifetime is a good reason to omit a child and would likely overcome any argument that the parent was being unfair. I've also read cases where the loss of the parent/child relationship has been held as a good reason to leave someone out.

      As always, the actual wording of the will makes a difference. Hopefully the will makes some reference to the reasons for leaving out your sister, as that would make things easier.

      It seems to me that you as a family have a few options, namely:

      1. give her the share she wants.
      2. go to mediation to work out a settlement whereby your sister gets something from the estate though not necessarily an equal share.
      3. Call her bluff and see whether she really will spend the time, money, and effort to contest the will. If she does, you will need someone who is really good at wills and estates work, such as lawyer Stan Rule who seems to know absolutely everything about BC wills and estates. (Give him a call if this third option turns out to be the one taken).

      Lynne

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  8. How does the BC Wills Variation Act affect your comments? It seems to make BC Law for Wills quite different.

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  9. We are a Gay couple, legally married for 9 years and together for over 24.
    We both have kids from previous marriages.
    WE are both estranged for all of them due to them having issues with our lives (they are homophobic) and in my husband's case, they have threatened his life.

    In both our cases, we do not want anyone else to inherit anything at all and only leave everything to the other, should 1 of us pass.

    Everything we have, we bought together over those years, including the house, cars, etc.

    At no time did anything at all we have belong to any previous ex family member.

    Due to those facts, can the laws still make it available for the adult children (all over 40 years old now) to try to obtain anything at all?

    Or are we safe since we both bought everything and a joint bank account?

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    1. In my opinion, you are safe from any claims from the children. Not just because you bought everything together, but because they are adults and independent of you. You are entitled to leave everything to each other.

      Lynne

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  10. If a widowed mother was to leave her house to her youngest daughter who her and her 3 kids live with, can the eldest daughter who is married and financially set fight it in court and take half the house?

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  11. My mother who moved from quebec to ontario has the beginning of dementia. She redid her will when she moved here but for the past 2 years my 2 sisters have become estranged from my mom even though we are all in the same town. My mom now wants to change her will to remove them from it. I am executor and poa for many years now and I am worried that if she does this they will contest the will. I do not want that battle after her death. I am her sole caregiver and I do have a brother that lives in the states. Can my mom give money to my brother and I before her death as an option so there would be less to split upon her death. Would my sisters be able to contest that as well. She wants my opinion on what to do but I do not want to give it as it is not fair to her me or them. But she wants tp do something. Any suggestions???

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  12. We live in BC and want to make a will. When my husband and I first met he came into our relationship with almost $80,000.00 of debt which was largely created by his common law ex. Once the joint home was sold that was the amount he has been paying off from her racking up credit etc... She took everything from the house he came to my home with a duffel bag. Most of everything we have is what I have purchased myself long before him. He does not have anything to do with his ex or children as all they want is more. They have nothing to do with him unless he opens his wallet. He is not wanting to leave them anything in the will as he has nothing to leave behind. His common law ex kept all of his belongings and personal items. His children write horrible messages to him thinking they will get more money when their mom already gets way more than enough and a few of them are old enough to get a job. Is he obligated to add them in the will? We are legally married and we would like to know our options

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    1. First of all, don't confuse a debt caused by the children's mother to be the fault or the responsibility of the children. her 80,000 debt has nothing to do with them.

      If any of the children are minors, they automatically have a right to get something under his will. It doesn't matter whether you or he or anyone else thinks they deserve it. They are entitled to it because of their age and relationship to their father.

      Adults are another question. In most parts of Canada, a person can cut adult kids out of their will pretty easily. It's a bit different in BC where there is law (even under the new WESA) that allows adult children to attack a will on the grounds that leaving them out isn't fair.

      I don't have any hands-on experience with BC wills variation-type of cases so I would strongly suggest that you sit down with an experienced wills lawyer to talk about options.

      Lynne

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    2. He had nothing coming into this relationship. He came in with a bag of clothes. 95% of everything we have is mine which I alone purchased before even meeting him. I never said that I didn't think they were deserving at all. This is why I ask. Anything he has now is joint with me as we have built it together. How are they entitled to something I/we built ?

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    3. As I said, if they are minors they are entitled to something you built if it was also built by their father. Because they are his children. As I also said, if they are adults, that's a different story.

      Lynne

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  13. Can I state in my will that any monies going to my grandchildren can not be gotten by my sons ex-spouses if my son have passed away and their children are minors

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    1. Yes, you can. One of the things you can do to make sure that never happens is to ensure that you will have an executor/trustee who knows these wishes and will follow them. Make sure you name an alternate executor/trustee as well.

      You can state in your will that you do not ever want the mothers of the grandchildren to be the trustees of the grandchildren's money. Don't try to write this kind of clause yourself because it will require proper wording.

      Lynne

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  14. My mother left me 50K and divided the balance of 1.5 million between my 4 siblings and their children. I received the smallest amount, same as my children which both received 2K. My mother recently told me that my brother, who lived with her, warned and threatened her should she leave me any money. I’m sure the only reason I got the 50k was because her lawyer told her to leave me something to show that I wasn’t forgotten. I’m trying to forgive my mom, she’s alive living in extended care, but it hurts so bad I wish I was dead. It hurts also that neither of my siblings care. I guess there’s nothing I can do, I just pray my end comes quick, my heart broken.

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  15. In a situation where a parent has 3 adult children one of whom is on good terms but the other 2 where put into foster care and group homes and abused, would there be any grounds to contest the will if the 2 were left little or nothing?

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    1. Hi,
      The facts about being put into foster care etc are not going to have any impact on whether or not an adult child can be left out of a will. Though it may well feel like adding insult to injury, it just isn't legally relevant.

      Parents are not required to leave anything to their adult children unless those adult children are financial dependent on the parents. Parents are not required to treat their children equally in their wills.

      My only caveat is that in BC, the rules are different so if you live in that province it might be worthwhile to talk to an experienced wills lawyer about options.

      Lynne

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  16. I am in a difficult situation, would dearly love some good insight.
    I was adopted as an infant and knew only my family as my family, though they did tell me I was adopted. I loved my parents, I wasn't perfect but I tried to be good...I cut grass, did my own laundry, washed dishes when asked, set the table most suppers, listened to my parents often, and I did not talk back. I was also very fond of them and very proud, because my parents were not only successful, they were funny and smart, too.
    However, my mother objected very strongly to a few things. Eg: I got a streak of blue colouring in my hair when I was 16...I was almost disowned for that. I moved in with a boyfriend instead of getting married, it got very cold between us. I was told "if you have a baby, don't bring it home, here!". I had several unsuccessful relationships, lived away from my parents. They never seemed to call. They always said they'd lost my number...I had always envisioned being able to talk to my mother on the phone every day, like she did, with her mother. But no, no interest, whatsoever. When my dad had a small stroke, my mother walked by me in the hospital like she'd never seen me before. My dad drove a car with one of the 'Queens' in a parade...same thing, acted like he'd never seen me before, while I waved and waved from the sidewalk. It was so sad! Finally, in my 30s, I did have a baby. They never called to find out how it went, never tried to meet my child.
    The difficulty I have found is this: I was not a foster child, meaning - I knew no other parents, I felt and believed about them that they were my parents, in every way, except for my birth itself. Because of that, they have essentially 'blocked' my access to estate provision (if it is a provision, in a way yes, in a way, no, right?)...but instead of a 50/50 chance at inheriting, they have removed any chance at a real family that I could've had (being somewhat insincere, after the paint dried)...and as to a will, they are wealthy, I am disabled and I have lived in poverty for decades. When their time comes, there is one child that they had a year after they adopted me, and me. I don't want to detract from what he has coming after their deaths, but I do find that most of my problems are because of the muddled signals I got, and being lied to emotionally, so extensively. Therefore, I really do feel, especially since, on my side, I was fond of them, and completely sincerely a part of the(ir) family, that I should have something. If I hadn't done as many chores as I did, nor cared about them as much as I did, I might not feel that it fits, but, as it is, I feel I should have some compensation for the fact that 'wills and testaments' are also a part of life, and of Canada, and that they have no right to block me, or change society's views on that subject, especially toward me & mine. I feel like it has been a bit of scheme, and I feel that I was a bit of a scapegoat with stuff that is now considered acceptable (coloured hair! can you imagine? "living in sin" she used to call it)...Do you have any insight on this matter in legal terms, and what should I remember to include, when I approach the estate, if it is that I have to sue for a portion? Thanks, LP

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    1. There are a couple of general rules about estates that apply to you. One is that a legally adopted child is the same as a biological child when it comes to inheritance.

      The second is that parents are under no obligation to give anything at all to adult children who are independent of them, even when it means giving unequal shares to their children. I understand the situation to be somewhat different in BC but I don't know which province you're in.

      The third general rule is that when an adult child is disabled, there is a strong argument that the parents should be supporting that child through their wills if that is financially possible (and sounds as if it is possible in this case).

      I suggest that you consider making a claim for what is known as dependant's relief. This simply means that you must show you are disabled and require assistance from the estate. Making a claim for dependant's relief should mean that you do not have to hash out all the heartache and upset because that won't be the issue. The issue will be whether you require support.

      When the time comes, try to find a lawyer with significant experience in wills and estates law to assist you.

      Lynne

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  17. Im 45 and my partner is 65. We have been together over 3 years . He has 3 sons who all are married with thwir own families . he always tella them that the 3 of them get everything of his when he dies . My question is . . Can your spouse/partner (commonlaw) be left out of your willif you passaway and your adult children inherit it all?

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    1. That depends on a number of things. Where you live is important. In some provinces (e.g. NL) a common law spouse has no right at all to inherit anything unless he or she is left a gift in the will. In other places (e.g. AB) a common law has the same inheritance rights as a married spouse.

      Another factor is any agreement in place including co-habitation agreement or any waivers of rights.

      Another factor is the financial status of the partners. It might be tough for you to claim you need his financial support if you are 10 times wealthier than he is.

      Also important are arrangements you and your partner might have in place such as beneficiary designations under pension plans, RRSPs, life insurance etc. as well as any assets you own jointly with him.

      So as you can see, there is no quick and easy answer that applies to everyone.

      Lynne

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  18. I have one adult son who has been estranged from me for two years. I live in BC. The estrangement was his choice. He refused family counseling. He owes me $2800 and refuses to pay me back. Can that debt be considered his inheritance? I want to make sure he has absolutely no chance of getting anything from me after I pass. What do I need to do to make this iron-clad?

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    1. After death, money doesn't mean anything. You were blessed with children, your last testament is your last wishes on this earth, dont make it bitter.

      Dont let money get in the way of love.

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    2. You are under no obligation to leave anything to adult children who are financially independent of you. Having said that, BC does have different laws than the rest of the country when it comes to children contesting the wills of their parents.

      If you do not want to leave this particular son anything, you need to make a will that says so. You might consider making a brief statement in your will as to why you are not leaving him anything. His choice to be estranged is relevant. So is the fact that he has already received $2800. You do have the right to insist that money you gave or lent him is his inheritance.

      This is not a will that you should make yourself. You really don't want him to contest it so it needs to be strong. I would suggest consulting a local lawyer in BC who does plenty of wills work (not someone who dabbles and does one or two a year).

      Lynne

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  19. I was sexually and emotionally abused as a child by my stepfather. I was also physically beaten. My mother married him when I was a 6 year old girl...my mother went on and had 3 sons by him. My abuse got worse and I was put as a rejection child after they had their family together. After I started to defend myself I looked like a defensive and defiant teen. After I turned 20 my stepfather kicked me out of the family home his 3 sons were always treated like royalty and I believe it was also a cultural thing as in my culture girls are still viewed as traitors and to join another mans family. My mother never defended me and always stood by her man. My question is I know as a stepchild from a previous marriage I legally cannot receive any inheritance unless my mother and stepfather agree to leave me something or be equal as in 1/4. I know there is a will for the sons to get 1/3 equally after their parents die...my question is if my stepfather dies before my mother and my mother dies after. Do I have a chance to get at least 1/4. My mother and I have been estranged for years because when I was kicked out by her husband I was told I was not welcomed back and I was just acting like any child but I was a step child and was less loved. But I do know my mother is not smart enough to create a will I’m sure one of my brothers will do it for her and definitely will leave me out. I’m in Ontario but I believe they believe that women do not inherit or should not. If there is no mention of me in the will can I state I was forgotten and have a right? As long as my mother outlives my stepfather...I know I have no chance if my stepfather out lives my mother. This hurts me.

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  20. Dear Lynne
    My mother in law has been ill with alcoholism for many years. Her drinking escalated in 2008 - 2010. She had a complete personality change and her relationship with my spouse (her daughter) has been strained and an up and down rollercoaster ride since. She has been having major memory problems reported to her Dr by other Dr’s who had seen her back sometime between 2010 to 2012. She had her sister and her Neice placed into a POA for health and finances should she become incapable. Sometime in 2013 her boyfriend convinced her to leave him everything in her will. There is no mention of my spouse in the will what so ever. When she was placed in hospital unable to care for herself the boyfriend went to her lawyer to inquire if she even had a POA. You would think if you had put in place a POA, you would let a close boyfriend know who that person was. This is where the memory problems become, prevalent. When dealing with the boyfriend, who has a different address to my mother in law, who incidentally moved himself into her house and refused to relinquish possession of even access to the home. He stated I don’t have to leave because I get everything in the will. He is acting like she is already dead. What recourse does my spouse have against a boyfriend who also has been taking financial advantage of her since she lost her licence in 2016 and she gave him her bank card to do the shopping when he was coming for a visit or the weekend. He has been helping himself to her money, $600 here $1000 there, as if the money was his to do as he liked. Can the will be contested on the basis of her not being named and her severe alcoholism and early stages of dementia? She has now been diagnosed with Wernicke encephalopathy. The Dr said this explains why she was accusing us of stealing from her all those years ago. She believed we were stealing from her but there has never been and evidence to show that we were stealing because we were not stealing from her.

    ReplyDelete
  21. I have been estranged from two of my children for a great number of years I will not be leaving them anything in my will and I will be writing my own will as this is probably the fourth one and I cannot continue the financial cost of riding boils is there a way too bright a few lines and name the children that are not receiving any inheritance

    ReplyDelete
    Replies
    1. As I wrote in the original post, you can leave adult children out of your will if they are not financially dependent on you. I agree that it's a good idea to include a few lines stating that some people are not included.

      It's also fine to make a brief statement as to why those particular people are not included. If at all possible, keep it polite and say, for example, that you are leaving them out simply because you don't have a good relationship with them and they aren't in your life.

      Including this sort of statement shows that you directed your attention to the question of who was to inherit from you, and gave it proper thought. Leaving them out wasn't an oversight or mistake. It shows you had a good reason. And most of all, it will speak for you once you've passed away and cannot speak for yourself.

      I can't give you specific wording to use, but hopefully this discussion will give you some idea of how to express yourself.

      Lynne

      Delete
  22. Hi Lynne,
    I am the oldest of 5 children, 3 to my mother and 2 to my step father.All of us in one way or another were abused and abandoned by our parents and had rough upbringings. The only child who currently has a relationship with our parents is my natural sister. My mother hangs her will over eveyones head to try and get her way with things and has lead to the 4 of us not able to try and mend a relationship. My question is, my sister will be the only beneficiary, is there any sense in he rest of us contesting the will? this may sound cold but we all have small children and struggle because we were not able to have a "normal" life and wish something better for our children.
    thank you in advance

    ReplyDelete
    Replies
    1. Hi Jason,
      To answer your question bluntly, there is probably no sense in contesting it, at least not based on what you've told me.

      It would be very comforting to know that there would be some money coming from your parents in the future to make up for some of the crap you've been through. But the law doesn't work that way. An inheritance doesn't really have anything to do with getting what you deserve. If only people who deserved their inheritance actually received it, most people wouldn't get a dime. Your parents have the right to leave their assets to whomever they wish.

      In giving you this answer, I'm assuming that none of you are disabled to the point of not being able to make a living, nor are you financially dependent on your parents. This matters because if you are a dependent, you have a right to contest the will to try to get more. (Note, a dependent has a right to try to get more but doesn't have an automatic right to win).

      If you happen to live in BC, the rules are different and it's possible to challenge a will on fairness grounds. You can't do that in the rest of the country.

      Do you know for sure your mother actually made a will? If she hasn't, it's quite likely that all of her children will get a cut of the estate (depending on the size of the estate and whether her spouse outlives her).

      Lynne

      PS Your question didn't sound cold at all. Finding out your legal rights is smart, not cold!

      Delete
  23. I was wondering I am executor and POA to my Aunt, she has passed and left everything to me including a joint bank account, i am the only one mentioned in the will and it is my decision for everything as I see fit as stated in her will.

    Now she has a daughter who's older in there 50's enstranged.My Aunt has left a letter stating why she doesn't want to leave her anything. she wrote this letter in 2008. Its 2019. She hadn't seen her daughter in 6 yrs Even in the letter it stated if the recogsile she still doesn't want her to have anythinh.
    So my question is am I obligated to give him a copy of the will if he's not even mentioned in it.
    I told her to go through a lawyer, but he still contacts me, I don't respond..can she contest the will I was told i would be her survivor and after I show the death certifcate to the bank which I've done her name comes off in 45 days.I had given them.a copy of her will as well and they told me it won't go to probate beca7se I'm.the only one in the will.
    Everyone has told me not to get a lawyer, am I doing the right thing?


    ReplyDelete
    Replies
    1. First, a side note. Don't take legal advice from bankers or anyone else who is not a lawyer. When the bank says that the will won't go to probate, it means that THEY don't require probate for their purposes. There could be plenty of other reasons for a will to go through probate, so please understand their information for what it is.

      On to your question about whether or not you want to show the daughter the will... You are correct that since she is not a beneficiary in the will, you are not required to show her the will.

      However, it's never that simple. She intends to challenge the will (or at least is considering it). If she is serious about this, she will end up applying to the court to make you give her a copy. If that happens, and she is successful, you could well end up paying legal costs for that application.

      Can she contest the will? If she has legal grounds, yes. Whether or not she can win is a different question. At this early stage, she has no information and is trying to find out what she should do. I think it might be worth your while to speak with a lawyer who can weigh different options with you.

      Lynne

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  24. Can a parent leave an adult child little or nothing if the child has high functioning autism but has always worked, lived independently and paid bills and taxes? (Please no judgement - nobody knows how much I've done for him and how abusive he is to me)

    ReplyDelete
    Replies
    1. It's not up to me to pass judgment on you. Nobody else ever knows what someone else's relationship is really like.

      The question you're asking depends on whether the adult child is financially dependent on the parent. The short answer is that an adult child who is not financially dependent cannot claim under provincial law that he is a dependent. Certainly there is a diagnosis in place that might at first indicate dependency, but the facts that you have given show that the young man is NOT dependent. Not every diagnosis automatically means dependency.

      The fact of dependency is important because if he is a dependent, he has an automatic right to claim more of your estate. If he is not a dependent, then he does not have that right. And in this country, we are allowed to leave little or nothing to our adult children if our relationships with them are toxic or non-existent.

      It would be a good idea to address this directly in your will. A bare-bones will is probably not going to be sufficient. If you plan to leave him little or nothing, make a brief statement right in the will to the effect that he is not a dependent. That will reduce the likelihood of him bringing a claim to be one.

      You might also consider a no-contest clause that says that anyone named as a beneficiary who claims a greater share will lose the share you had originally given them. That also raises the stakes for him if he is considering making a claim.

      Lynne

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  25. I live in BC if I make a will in another province that allows me to disinherit one of my children to keep her from getting any of my estate...would that will be valid ?

    ReplyDelete
    Replies
    1. Hi Valerie,
      If you make a will that is valid in one province of Canada, it is likely to be valid in all provinces (with the possible exception of Quebec) because the rules of execution are so similar.

      I suspect though that what you are really trying to do is get around the fact that BC has legislation that allows a child left out of a parent's will to challenge the will. I haven't researched this, since I don't practice in BC, but I sincerely doubt that your idea won't work. The place of execution of the will won't matter; it's your residence that matters.

      A better idea would be to speak with a lawyer in BC who specializes in wills. The reason for leaving out a child can make a difference, as can the wording in the will, so look into it further.

      Lynne

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  26. Setting Up A Will
    would like to set up a will in case something happens to both my wife and I. Unfortunately, options for us in terms of who will take care of the children is limited some concerns with our parents and siblings being involved. We are considering a cousin however.

    1. Can we designate two separate individuals to take care of our children in case the first one ends up declining our second preference is accepted?
    2. We both have sufficient insurance about $3.5 million if something happens to use in the next few years and $1.5 million if something happens over the next 15 years. Is there some type of mechanism that we can set up where the funds are distributed as follows:
    a. a certain percentage to our children and percentage to our caregiver?
    b. the funds are invested in a specific index fund?
    c. the funds are distributed and can only be accessed by our children when they turn 18 and where it provides them with an allowance over the long term.
    d. no additional funds can be provided to the caregiver beyond what is allocated and also provided monthly on condition they are the caregiver?

    Does such a product or mechanism exist for what we want to do?

    ReplyDelete
    Replies
    1. Of course. All of those things are possible. In fact, I do wills like that every day, as do other experienced wills lawyers. Sit down with someone local to you who has lots of experience with wills and talk through your ideas. Some lawyers are more comfortable doing only simple wills, so try to find someone whose main area of practice is wills and estates.

      Lynne

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  27. Hi lynne,

    My late husband has a will I’m the only beneficiary of the estate and he did not put he’s 2 boys on it and now his ex wife is contest the will behalf of them but during their divorce my late husband give her a million so that she can’t get something on he’s estate. What should i do about this?

    ReplyDelete
    Replies
    1. Hi Jessel,
      The kind of application she is bringing, I expect, will be what we call a "dependent's relief" type of application. In other words, she would make the argument that the sons have not been adequately looked after by the will.

      The amount paid to the wife in the past may not, on its own, be enough to defeat the application. For one thing, the money may have been for her, not for the kids (check the wording of the written agreement). And even if it was for the boys, it might not be enough based on factors such as the lifestyle they are used to, how much your husband supported them, their financial needs, and their other sources of support.

      I suggest that you get a lawyer local to you who can handle both estate law and family law. This won't go away without some work.

      Lynne

      Delete
  28. Hello Lynne,

    I was adopted when I was four, and my parents never modified their will after I arrived, only naming their 3 biological daughters. Does this mean that I am excluded? I am from Quebec, but the will was signed in Ontario. Thanks

    ReplyDelete
  29. Hello, my mother has cut me out of her life for religious reasons. As her only child, am I responsible for her debt when she passes? Am I liable? And what about the body, will that be my responsibility?
    Thank you
    Denise in BC

    ReplyDelete
    Replies
    1. Hi Denise,
      You are not automatically responsible for her debts. If you have any joint debts with her, then obviously you would, but that seems unlikely in the circumstances.

      If you inherit her estate, any debts are supposed to be paid by the executor first. If you receive the estate but the debts are not paid, you could end up being responsible for them, depending on the circumstances. For example, if your mother had income tax arrears and the only thing in her estate was a house, CRA could force a sale of the house to pay the arrears. If you had already taken the house, then it is the same effect as you paying the tax.

      As you are estranged, it seems unlikely that your mother would leave her estate to you (though that is not always the case). If she does not make a will leaving the estate to someone else, you will automatically become her beneficiary. If you are worried about inheriting debt, just remember to pay HER debts out of HER money and not your own. If the estate doesn't cover all of the debt, you are not responsible unless you received estate assets.

      Lynne

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    2. Sorry, Denise, I forgot to answer the question about the body. If your mother makes a will that names an executor, he or she is responsible for the body. If that is not the case, you are the next of kin and have the right to dispose of the body as you see fit. However, you cannot be forced to deal with this is you do not wish to.

      Lynne

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  30. Hi; my mother recently passed away. Myself and 4 other siblings are left. Her will states that what is left is spilt 20% each between all 5 of us.except she put the stipulation in the will that my 20% gets spilt once more between myself and my 3 children, leaving me with 5%... do I have a right to contest this?

    ReplyDelete
    Replies
    1. Hi Auz,
      Nothing you've told me suggests you have a right to contest the split with your children. Your mother had the right to distribute her estate as she saw fit. She must have felt that including your children in the distribution was the best use of her estate. Perhaps she was worried about your share going to your spouse on your death, or that you might be a spendthrift and leave nothing to your children. Obviously I don't know her specific reasons but she had the right to leave gifts as she wished.

      Lynne

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  31. Hi Lynn
    I'm writing this for my 90 year old mother. She wants to change her will and leave everything to me. Her bank accounts are already in joint with me and the only thing else she has is her house. I have one older brother and one older sister whom she wants to leave a small amount to each of them 1000 dollars. Over the last 5 to 10 years neither of them have been around to help her and she feels that because I'm the only one who does anything for her she wants me to have it all. She lives in ontario and wants to know if she can legally do this. Im torn by her request. I feel its her house to be done with whatever way she wants but im feeling guilty that she wants to cut everyone but me from the will. So i guess my question is isit legal? She is also of very sound mind and has a dr note to prove that.

    ReplyDelete
    Replies
    1. Yes, it is legal to leave an estate unequally to the kids. It's important to acknowledge, though, that it is not necessarily going to go over well with the other kids. If your mom decides to go ahead and do this, she needs to try to ensure that they will not contest the will.

      To do that, she should see a lawyer who is VERY EXPERIENCED with drawing wills and who has been through this before. She needs a strong will that addresses head-on her reasons for not treating everyone the same.

      The lawyer will take copious notes that support your mother's decision.

      The doctor's note is also important as your siblings will automatically accuse your mom of being mentally incapacitated and you of influencing her.

      Lynne

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  32. Hello, I am the mother of an adult child with a disability. In all honesty my son will probably not be able to withdraw from my care and will require support for the reminder of his life and will not be financially independent. My soon to be ex has not provided any financial support nor has he any financial plan in place for my son as he ages. My ex is living in a common law relationship and hides assets under her name and hides income to avoid paying support. This new partner is a home owner prior to them becoming common law and his assets are under her name. They plan on getting married once my divorce from him is final. As part of my divorce agreement I want to ensure my sons financial future is secured. Would I be able to insist as part of our divorce that he have his will prepared and my son be entitled to a portion of this father's estate including what him and the new wife aquire during their marriage?

    ReplyDelete
    Replies
    1. If he's good at hiding assets, I have a better idea. Why not insist that he take out a life insurance policy for the benefit of your son? This has been done and upheld in marriage breakdown agreements for many years. That way, you don't have to worry about him making sure his "estate" is nothing.

      Lynne

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  33. Hi there . I am messaging you as the oldest son . My mother and brother have been doing real a state buisness together for year and have left me out . I have no idea how much money or assets my mother and brother . My mother is in her early 70's . When she passes I believe my brother will be left with everything . Is there anything legal I can do about this Situation ?

    ReplyDelete
    Replies
    1. This is a Canadian Problem. (Biblical Koine Greek Diablos - Separation of Family. All legal code in Western Europe originates from Canon Law and Roman Codex then evolved into Commonly used law in England/France/Spain.) You need to speak to lawyer, but it is unbelievable that this is even occurring in Canada. Canada delibrately got rid of Forced Airship under the pretext of freedom, but that is not freedom they are disinheriting and breaking up families. You have nothing left other than God without your family . This is about division, not combination. And, religion plays a fundamental role in Law, law is about Logic, Reasoning and Balance. But, they are breaking up families, casting a permanent shadow on families ? this is Diablos. To Seperate the family, ask your Orthodox Church about what Diablos really means, and ask about union of marriage and union of family. You celebrate the combination but to later break it up at Death ? you are eternal.

      Usually, from my experience the parents age and their minds become more dependent on one of the children. (usually one with time and availability) Well, this child probably influenced the parents, comparable to levels of brainwashing. Giving suggestive remarks and advising them on how to feel. Their cognitive capacity goes down, so suggestive remarks make an everlasting impression on the mind. Genetically, people above the age of 60 begin this slow mind deteriorating process, and usually (50 % of time) one of the children start to manipulate the parent. I personally have seen this and in the financial industry Regulators will penalize financial planners if they give advice to an elderly person stating that their mind is fragile and under your influence. Well, the same applies in your case, the one child influenced the parents and the parents above age 60 have a slowly deteriorating mind. the legal system knows this but there are too many bad actors in Canada's judicial system. The amount of Estate and Legal abuse is TOO high in Canada. I would live in the USA, or anywhere else in Europe.

      Delete
    2. Your basic idea that religion plays a fundamental part of law is incorrect. It does not. Nor should it, since our country has people of all religions, all with different ideas.

      Personally, I agree with testamentary freedom, including the freedom to disinherit a child. Why should a parent be obligated to give anything to a child who hasn't bothered speaking to the parent in decades, or who has physically or financially abused the parents? You say that you oppose financial abuse of elders but your idea that parents should never be able to disinherit children would, in my opinion, only increase incidents of abuse.

      I'd like to see your source of the information that 50% of children manipulate a parent. My experience in 35 years of drawing up wills, meeting families, researching the question of undue influence, and otherwise being closely involved in this area of law tell me otherwise. Yes, it does happen that children abuse parents and sometimes parents abuse children too. People aren't perfect. But I don't agree that the numbers are anything close to what you suggest, nor do I believe that the answer is to impose religion on everyone.

      Religion is a dying concept. And even if it were not, as I said people come from all faiths so who gets to say which religion we make everyone follow?

      And as for your comment that things would be better except that we have too many bad actors in the judicial system, all I can say it must be sad to live wherever you live. I know hundreds of decent, honest people who are also lawyers and judges and law clerks. The vast majority of us are good people.

      Maybe in my world, the sun just shines more than it does in yours. We are all entitled to our opinions.

      Lynne

      Delete
    3. Hi John Jugovic,
      Yes, it is possible that it could happen that way. Because they are doing real estate deals, it's possible that they have been putting your brother's name on the properties so that he will inherit them as a joint surviving owner.

      As for what you can do about it, the only thing I think you could do is speak with one of them. Not an easy topic to bring up, I acknowledge that. But you cannot force your mother to make any will other than the one she wants to make and feels is fair.

      Lynne

      Delete
  34. Hi Lynne, mine is a very complicated and hard to believe case. You know how they sat truth is stranger than fiction? Or you just can't make this shit up? Well that is my problem.
    Where to start..ok my "mother" is my only living parent. I am fairly positive she will leave me nothing as we do not get along and haven't spoken for over 17 years, except for a brief period when my brother was murdered, and that ended up making me even madder. What "mother" complains about the cost of burying her murdered son?? And she was reimbursed the money by victims services, and she claimed his death benefit so it actually cost her 0. But she doesn't tell people THAT. Anyway, it gives you a small idea of why we are estranged. She was VERY abusive when we were children. Verbally, mentally and especially physically. She would beat us if we looked at her the wrong way. She always told me it was " my fault she had to marry that asshole", referring to my father. When I was young I never understood, I just knew I had done something bad and she was mad at me. When I was 12 and figured out just what she meant I said I didn't make you sleep with him the next time she made that comment. I remember I was sitting at the table and she was doing the dishes. She walked over and backhanded me so hard it knocked me off my chair and she said don't ever speak to me like that again! I said stop blaming me for your mistake and ran before she could hit me again.
    Anyway, she sweet talked her way into marrying a rich lonely man who was a wonderful stepfather and he LOVED my 2 sons as if they were his own. He told me he looked after them and us in his will and he wanted me to know because he said, HE KNEW my "mother" wouldn't tell me. He had grown wise to my mother in their 13 years of marriage. 3 months later he died in an "accidental" fall. I believe she pushed him but can't prove it. She pulled out the old will made before my kids were even born and claimed that was the only will, she gets everything. No one gets anything but her. She even kept my children's piggy banks and bank accounts Ray had told her to open for them. She said there's nothing for them. Never was and never will be. Her brother, my uncle molested me when I was young and when ui told her. She said it was my own fault. With all of this, and so much more horrible things, if she cuts me out of her wiĺ can I contest it, especially since 90% of it came from her dead husband?

    ReplyDelete
  35. Hi Lynn... I was previously the main executor and recipient in the will that my father and mother prepared. Then my mother passed away in 2015 and my siblings influenced our dad and so he actually contested what they had prepared in their Will so we began a three years of legal battle. My siblings on the other hand were not mentioned in the previous will so it seems this how things started by coming to the picture after so many years of being estranged and convinced my father to fight me for what our dad and mother had already prepared themselves.To make the story short we closed the case three years later with final agreement and assests distributions because I was not going to fight it anymore and I knew the my siblings are behind these sudden changes. Now it is 2021 and my father seems to be ignoring me for past 4 years and my siblings have completely taken over his affairs to most likely be the recipient of his Will. And Ex lawyer did mention that that's the only conclusion he drew by seeing the siblings reappearing in last days of my mom's lives to influence my dad, and they were successful. Based on these what are my chances to contest my dad's new Will ? Do you think there is any grounds for contest in reference to last Will prior to my mom's passing? Or do you think my siblings suggests to him so my dad will do any thing to keep me out of his new Will? By the way he was suffering from slight dementia and Naurssistics behaviour and not sure of his mental capacity at the moment or how that has influenced his new Will?

    hope I can hear from you, Thank you
    Jose

    ReplyDelete
  36. Hi Lynn,
    My husband & I recently learned that his father molested our daughter when she was a child (she is now 24). We have an ongoing case with the police & believe he will be at least deemed a sex offender as he has already confessed to his actions. My question may sound cold but I think is important, we know that his Will had left equal shares of his Estate to his three children; now that we have cut him out of our lives for obvious reasons, if he chooses to now rewrite his Will & cut my husband out of it, do we have strong grounds to contest the Will?

    Thank you for your time.

    J

    ReplyDelete
    Replies
    1. Hi J,
      No, I would say not, unless your FIL lives in BC. A parent is allowed to disinherit a child from whom he is estranged. The reasons for the estrangement are not always relevant. In this case, it sounds as if your husband was okay with being estranged from his father.

      There is no kind way to say this. There is no connection between what your FIL did and how he distributes his estate. Your husband doesn't deserve anything from the estate for having gone through these events. It will be a heartbreaking mistake to think otherwise.

      Lynne

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  37. Hi Lynne, my father passed away 2 years ago within 6 weeks of being diagnosed with cancer. While in the hospital he requested to re-do his will (hand made will)and had 2 witness's to sign. My brother was the executor on his previous will but because they have been estranged for a number of years he renamed me as the executor, my sister was not that close with him either.
    My father left his property to one of his grandchildren and my brother and sister are not happy about this. They want the property to be sold and split 3 ways between us 3 adult children. Whatever is left after the mortgage and expenses are paid is to be split between us 3, however there wont be anything left after all expenses are paid.
    There is also a RIFF that my brother was left as a beneficiary on at the bank and he also refuses to go in and claim it.
    My lawyer has requested for all beneficiaries to send in photo id with their signatures and both my siblings refuse to send it to him.
    So 2 questions...what happens to the RIFF if he does not claim it?
    What happens if the probate is approved by the courts but my siblings will not sign off on it. Will the property be able to be signed over to the grandchild?
    The banks have requested for his estate to be probated and so we are in the midst of that now.

    ReplyDelete
  38. I'm on disability for depression anxiety and impinched nerve and I'm institutionally how do you call it institutionalized done a lot of time in jail so does that leave me as being handicapped and my parents have to leave me something or can they exclude me cuz I read that if you're a handicap they have to leave you something which I am I'm on disability to db2 from social services and so I hope they have to leave me something because I'm afraid they might not leave me anything please get bac

    ReplyDelete
    Replies
    1. At the end of the day, only a judge can decide whether a person's specific circumstances make him a handicapped individual, and whether or not that means his parents must support him in their wills.

      Two things would need to be determined. One is whether you are actually handicapped to the point that you cannot earn a living. Time spent in jail should have nothing to do with it. Mental and physical problems are relevant, though.

      I'll assume you have established that, since you say you are receiving disability assistance.

      The second question is whether you are their dependent. This is not a simple question. If you haven't received a dollar from them in many, many years and you've looked after yourself for your whole life, it's hard to say that you're a dependent.

      Then the question turns into whether you SHOULD be a dependent of theirs, even if you're not one at the moment.

      I believe if it came right down to it and you were left out of your parents' wills, you would have a very good chance of getting something from the estate.

      Lynne

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  39. You e had terrible advice. As long as a will is otherwise legal a testator or testatrix is entitled to "disinherit" a "disabled" child. There are no special rules in canada that alter this basic tenet of estate law. You are not "entitled to inherit" *anything* just by virtue of being born into a specific family. If your parents die intestate (that is, without executing a legal will), you *may* be entitled to some of the estate as next of kin.

    ReplyDelete
    Replies
    1. Morrigan,
      A disabled adult child automatically has a right to apply for dependent's relief from the estate. No, it's not a right to inherit, but it is a right to ask the court to change the will in favour of the dependent child. This is true whether or not there is a will.


      Lynne

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