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Thursday, September 6, 2012

"I'm contesting the will" - real threat or just bluster?

I hear a lot of talk from beneficiaries about contesting of wills. The idea is tossed out as a threat by individuals who are unhappily surprised by not getting what they had hoped for under a deceased's will. But is it a realistic threat? The impression I get is that many people believe that anyone who doesn't like a will can simply demand that the will be changed to suit them.

This is not how it works.

Contesting a will means applying to the appropriate court to have a will struck down as being invalid. You would have to prove your case with sufficient relevant evidence. No judge in the country is going to rubber-stamp your request just because that's what you want.

Though each case and each will is different, the general concepts behind contesting a will are the same everywhere. Each case falls within these general headings. They are:
- undue influence
- lack of mental capacity
- problems with the will document itself, such as improper witnessing, lack of signature, other formalities not observed.

You'll notice that I'm leaving aide the issues that lawyers usually refer to as "dependent relief". This refers to an application by a spouse or child to get a larger share of an estate under a valid will. The will itself would still stand, but the court is asked to give a larger portion of the estate to someone in the family.

In this post I'm talking about the ways in which someone hopes to bring the entire will crashing down.

Undue influence:
A person relying on the concept of undue influence aims to show that the will should be struck down because the deceased had been forced or persuaded to make a will that wasn't really what he or she wanted. The idea is that the person getting the estate under this will wouldn't receive it had the deceased been left alone to do what he or she really wanted to do, and therefore shouldn't be allowed to receive it now.

Lack of mental capacity:
Mental capacity is an essential component of a valid will. A person making a will must understand what he or she owns, must have an appreciation of his or her obligations and must understand the nature and effect of making a will. Therefore, a will can be attacked on the basis that the deceased didn't really know what he or she was doing due to illness, injury, medications or other causes of confusion.

One thing that should leap out at you when you read about undue influence or lack of mental capacity is just how hard it would be to prove that either of these factors actually existed when the will was made.

How do you prove that the son receiving the lion's share of his mother's estate manipulated her into leaving it all to him? He will say that he was the one who helped Mom the most during the latter part of her life and that she left the estate to him out of gratitude. Then the battle will begin in earnest.

You may be absolutely positive that he influenced her. You  may even think that "everyone knows" he manipulated her. But we're talking about a court of law, not a family dinner table. How do you prove it?

I'm not saying that these cases never succeed, because they do. They rely on a judge's interpretation of doctor's reports, witness testimony, family history, common sense and the law. They are tough cases that take a long time, a lot of money and infinitely thick skin to tolerate, but when the evidence exists, they succeed.

But I also believe there is an awful lot of blustering and threatening going on, carried out by those who have no real idea of just how hard it really is to successfully contest a will. Most people who talk about contesting a will change their minds once they realize what's involved.


Please don't post a question on this thread. This thread now has more than 200 comments, which is the limit for this system. Once we go over that limit, I can't see or respond to your question, so please post it on any other thread that has less than 200 comments. Thanks!

102 comments:

  1. By signing out a will from the lawyer who had drawn it up, make it null and void if no other will was prepared?
    My mother died a few months ago and we (my sister's and I) know this will exists but my mother's husband does not know we know. He lead his lawyer to believe my mother did not have one. My mother was in the early stages of dementia when he took her to the lawyer to sign it out. Her portion of the sale of the marital home was help by a trustee. Long story short - do we have any legal right to bring this into the light. Not contesting but validating an existing will...is there a legal term for this?
    Thanks kindly,
    Brenda

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  2. Hi Brenda,

    I think by "signing it out" you mean that your Mom went to the lawyer's office and took her will from the lawyer and took it home. If that isn't what you mean, my answer isn't going to make any sense :)

    No, signing it out like that does not in any way make it null and void. It has no effect on the validity of the will.

    I think that as a family member and potential beneficiary under the will, you have not just a legal right but a moral obligation to bring the existing will to light. Your Mom's husband may mistakenly think the will is void, or he could intentionally be concealing it. Or, he could have taken it to a lawyer for probate and been told that there is some other problem with the will (seems unlikely if it was prepared by a competent lawyer). Either way, you need to have an answer to why the will isn't been sent to the court for probate.

    Even if you don't know whether you'd receive anything under the will, you are what we would call a "logical beneficiary" because you are the daughter of the deceased.

    The lawyer who signed out the will to your mother will have proof that the will existed and was picked up (after all, signing it out suggests that she signed something, which would be common practice in a law office).

    So, consider how you'd go about this. You might end up hiring a lawyer if you can't get a direct answer from your Mom's husband.

    Lynne

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  3. My mother passed away and left mt brother a few thousand dollars the rest to be divided among the rest of us.

    there was no coercion, no mental issues and the will was signed.

    My brother says he is going to contest the will based on the fact he should have received more.

    Will this fly?

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    Replies
    1. That will depend on the reason he should get more. If he has a handicap that prevents him from earning a living, he could be successful in getting a larger share.

      You said that your mother left him a small sum before dividing the rest among the children. Was that small sum in recognition of something in particular? Maybe a thank you for helping her later in life? On occasion a parent will make promises to one of the kids, usually a gift to thank them for helping. Every now and then a lawsuit based on that kind of promise is successful but they depend very much on the specific facts of the case.

      Lynne

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  4. My Mother created a new will when she found out that her cancer had spread. She ended up leaving her partner (Mom and Dad were never legally divorced)the house and me, her only daughter, all of her assets. She was in a substantial amount of debt at the time of her death. At the time of creating her last will, I'm not sure she realized that her assets would have to be liquidated in order to pay off debts - she loved me dearly and everyone who knew her would concur. I am 100% certain she did not intend to leave everything to her partner, in whom she depended on for care and helping her with finances, and me nothing. Without getting into too much detail, are there grounds to challenge the validity of her will?

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    1. The problem with the will is not its validity. The problem is that your Mom didn't plan very well.The level of her affection for you is not in question. I wonder whether she used a lawyer to make her new will, as presumably the lawyer would have explained the consequences of the plans she was making. I'm sorry to tell you that it's actually really very common for people to make wills without ever asking about the legalities.

      If you live in BC, you may attempt to have the distribution changed under the Wills Variation Act. In the rest of Canada, you can only apply to have the will changed if you are legally a dependent. Being a dependent means that you are either a) a minor child or b) an adult child with a handicap that prevents you from earning a living.

      Lynne

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  5. my father in law left the bulk of his estate to be divided equally between his secretary and our 3 yr old son in trust to us. we are planning on having more children and feel this is really unfair to our family. the sum of money is large and this means that if we have more children they receive nothing. all we want is for it to be changed so that it would be in trust to all our children if we have more and be split equally. is there any way we can have this changed? does the executor have the power to do this? we feel this is harmful to our son as it puts him in an unfair position when he is older and it is a burden. it also may influence our decision to have more children as they will never have what he has. Your thoughts or advice would be greatful

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    1. Good grief, you are a whiner!

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    2. No, the executor doesn't have the power to change the beneficiaries of the trust.

      Lynne

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  6. My mom's will reads that she left money for her two grandaughters of her deceased son via two joint accounts set up between mom and her daughter. The daughter worked at that bank, stole the money and then closed the accounts. Not sure when the accounts were closed. What can be done?
    What can be done?

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    Replies
    1. You're going to have a problem proving that this was theft, since the accounts were in joint names. This is exactly why I keep hammering into people not to put their money into joint accounts with their kids.

      Lynne

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  7. My aunt had a will leaving everything to her nephew and 3 nieces. She always told us that we would be taken care of. She had no living children and was a widower. She remarried in 2003,then in 2004 changed her will to include her new husband but her family would still receive the bulk. In 2011 she started becoming ill. February 2012 she made a new will and told her nephew, whom she considered a son, that his inheritance didn't change but she had removed 2 of the nieces and added her new husbands children. She recently passed away. When the will was read, it showed that the entire estate now goes to her husband, his children and grandchildren. She was not close to them and still very close to her blood relatives. Can the nephew and nieces contest the will?

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  8. My mother predeceased my grandmother, in my grandmother's will, it included all her children and grandchildren, but no mention of deceased children's children. I believe this was just an oversight of the lawyer, as my grandmother would never had wished my sister and I be excluded. My grandfather is still alive. I'm not thinking of contesting my grandmother's will, as most of the estate was left with him by the children's choice with exception of some equally distributed lump sums. However when he dies, he likely has the same will. Contestable? Or someway of dealing with this before he passes? My Aunts are aware we were excluded, and using the will as the excuse for my sister and I to not inherit anything.

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  9. Good Day

    My GrandMother passed away over a year ago. We had the estate law proceed with th will, about the same time probate was passed my aunt made a claim to contest the will. We receivced a notice to object, that was in Spetemeber 2012, and have hear nothing since. We have contacted the estate lawyer and seem to get a run around and told that she will send a lawyer to other lawyer or call them. My question is Isn't there a time limit my aunt has to do anything now. Hasn't any caveat or notice expired and our lawyer can finsh the process of disturbiting the will?

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    1. Hi Lynn , I have a few important quetions to ask . But I am not sure how to do it . If I am on the rigth track by sending you this ,would you send back a reply please ? Regards Jeanie

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  10. my father was bitter near the end of his life.. he changed the will be cause we would not leave our lives to tend to his every need. he divided his will to 23 persons from great grand children to his children equally. except for those who lived in his town he gave much more. he also left the lawyer in charge to invest any money for those under thirty. with the inclusion that if the lawyer looses all or some the lawyer would not be faulted.only the lawyer and investor were present to change his will family was not included..as a result property is at the discretion of the lawyer to sell to whom ever they wish? can this be contested if all children of his agree this is not correct?

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    1. There is no reason in the world why your father would have included his kids in the process of changing his will, even if he was not bitter. He can change his will without anyone's permission or input.

      It sounds as if your father named the lawyer as the executor and trustee of the estate, and the trusts under the will. Like any executor, the lawyer has to make sure that he distributes the estate funds according to the will.

      A beneficiary of an estate doesn't buy his inheritance, so I assume you mean selling estate assets and then putting the money in trust for the beneficiaries. Yes, he can do this, unless the will says otherwise. An executor has the ability - and the responsibility - to sell assets in the way that he believes benefits the estate the most.

      What exactly is it that you want to contest? Is it the selling of property to someone outside the family? If someone wants to buy something, why go through an expensive lawsuit? Why not just make an offer on the property?

      Lynne

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  11. My stepmother changed the will 2 months after my father died and left everything to her sister and my stepdaughter(who lived with her for 10 years) I could not get a copy of her and Dad's will from the courthouse because it was not probated but I know that my Brother and I were to inherit everything and I was executor of the will. I only found this out at the funeral home when we went to make arrangements. We were very good children to her and to say that we were shocked is an understatement. Do we have any recourse in this matter?

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    1. There is nothing stopping anyone from changing their will after their spouse dies. However, she can only leave the assets to people if she has inherited them herself first.

      It's possible that your father's will left everything to her, and you and your brother were only supposed to inherit if she died before your father.

      If you were the executor of the will, your father should have told you where the original will was kept so that you'd have access to it when it was needed. It couldn't be probated by anyone but you. How did you hear it at the funeral home, and was it from a reliable source?

      I assume that you approached your stepmother and let her know that someone told you you're the executor. If you are, you have a legal responsibility to handle the estate. However, since you haven't done that and it appears that someone else has, like I said, your information may not be correct.

      If you believe that you are the executor, hire a lawyer immediately and demand that your father's original will be handed over to you.

      Assuming your stepmother did properly receive the assets from your father's estate, she can do whatever she wants with them, including leaving you and your brother out entirely.

      Lynne

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  12. Hi Lynne,

    If beneficiaries dispute or contest a Will, who pays for the Court costs re the Executor.

    Thanks

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    1. my mother passed away 1998 of cancer shortly before my father had a three strokes before my mother died she told me my father was not thinking straight and my sister has no conseints she told me there was 4 50, 000 bonds my sister now has shown me two slitly diferent will sthtleave her full control my mother cared equally for all her grand children his will leaves nothing to my self and children also my children wer no bourn when her will was wrote my self and children received nothing from my mother at all can I contest raysdream@hotmail.com

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    2. Normally an executor is fully indemnified for his or legal costs, and I believe they would be in a case contesting a will. The executor might have to pay his or her own costs if the lawsuit was about the executor's behaviour.

      Lynne

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    3. Hi Lynne, I would also like to hear the reply. My father just past away in December. He had a will since 2006 (I am the Executor). He owned a property with a women who he was involved with for 40 years (but they did not live together), They only went to the property on the weekends over the summer. He made it very clear in his will that she could use the property until she passed away and when she did, the property was to be sold and his half was to be divided amongst his 6 children and her half would go to her only son. The day after he found out that he had stage 4 cancer with 6 months left to live she told me that she was going to ask him to sell her his half of the property (which she did). He sold it to her under the assumption that his portion was $60,000 (which is what she gave him) for the sale. Once he passed away we found the sale papers and saw that his portion was actually $106,000. Can we contest the will and have that $46,000 reimbursed to his 6 children?

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    4. Are you saying that the signed agreement between them said the sale price was $106,000 and she only gave him $60,000? If that is what your father and his friend agreed to in writing, then yes you can pursue her for the balance. If what you mean is that she paid him less than the property would have fetched on the open market, you are probably out of luck. He had the right to make the deal the way he wanted to.

      Lynne

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  13. Hi Lynne,

    My father passed away April 2011, and then my grandfather passed in September 2011. My grandfather had his will drafted to say that if one of his children pre-deceased him that a sum of money would be left to the children and spouse of that child. I just received notice that my father’s wife is contesting my grandfathers will, fighting for my father’s share of what he would have received if he were alive, asking for his share to go to his estate, and in turn she, of course, gets his entire estate. Bottom line she is angry that she got nothing and thinks she should get my father’s share. (land in a family farm that my dad and her farmed, but it belonged to my grandfather) What is the likelihood of this happening?

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    1. This is a tricky situation and there must be more to it than meets the eye. There may have been conversations held between her and your grandfather that you don't know about in which he made promises to her and your father. It sounds as if she was expecting to own a piece of land that she spent years farming. Depending on the facts, she could well have a case.

      Lynne

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    2. Hi Lynne,
      There were definitely no promises or conversations made to her to imply that she would get anything. She actually said she knew what was in the will and that it made her angry that is was drawn up the way it was. She knew she would get nothing, but she still figures she is entitled to what my father would have got. She contested the will last year, I am wondering how long does it usually take for everything to be finalized?

      Thanks Lynn!

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  14. I am in need of help. My father passed away in 1996, he had a will made and he left me the house, in which I still live in to this day, but never had a chance to sign it because he passed away unexpectedly. My mother went to a lawyer and had them give her everything instead and she promised to give me back the house. But I am finding out now that she is getting older and not doing well, that she won't honor my father and is going to leave the house to me & my 2 sisters. My one sister agrees that the house should be mine because this was dad's wishes and since I have always lived here and have taking care of the property and dad when he was alive but my other sister wants me to buy her out? What can I do to get the house back to me, this is all I want. My mother refuses to talk about it.

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    1. There are a couple of statements in your note that are incorrect, but I know they are the result of the frustration you're experiencing.

      Your mother could not have gone to a lawyer and "had them give her everything instead". You said yourself that the will wasn't signed, so it was never legal. Your mother inherited, I believe, because there was no will and she was his legal wife. That isn't her doing; that's just the law and you can't blame her for that.

      You also need to realize that once the house was transferred to your mother, it's not your father's house any more. She doesn't have to honour his wishes, or anybody else's wishes, because it's her house.

      Your mother doesn't owe you the house. I know this isn't much help now, but you might have had a pretty good chance of contesting your father's estate on the basis that you looked after your father and the house based on his promise to you that you would have the house. It may not be too late, since the house is still in your mother's name and therefore still accessible, but that's something you would want to discuss with an experienced estate litigation lawyer in your area. This is a tough argument to win, but be frank and honest about what you expected, and why, and see what the lawyer says.

      Why does your mother refuse to talk about it? Has she already given an answer and is sick of the conversation? Or is she just avoiding it? Understand that if you hire a lawyer to contest this, your mother and sisters will probably take it as an act of hostility and you may lose your relationships with them.

      Lynne

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  15. Hi Lynne,
    I recently found out that my mother, she is still alive (79), has left everything to my sister and her family in the will.
    In the past my mother has asked me for advice about her will, so I saw no harm in looking at a new version that I saw on the table.
    Briefly, in April 2012, my step-dad's brother informed me that my mothers drinking was killing my him (my step-dad), especially since he has Parkinson's, and I had to do something about it. Just that previous Dec. she totaled their SUV while driving impaired. I had my suspicions about my mother's drinking, but never confronted her directly since I didn't have evidence.
    I waited until she made an undeniable mistake as a result of her drinking, and then confronted her in an e-mail some days later since no apology was forthcoming.
    I contacted my sister the morning of the blunder asking her if she was aware of my mother's hiding booze bottles around the house. She never bothered to return my call that morning and I had been trying for a couple of months to talk to her about it but she never made the time. We have not spoken since.
    I sent her a cc of the e-mail I sent to Mom begging her to stop drinking and waited 4 days to hear something back from her, nothing. I then informed her that I couldn't believe she was going to sit idly bye and watch our Mother drink herself to death after watching our father basically do that very thing.
    I awaited a couple of months before trying further contact, sending an article on seniors health and drinking, I cc'ed a copy to my sister, again stating I couldn't believe she wasn't doing something. As it turns out, she stopped mom from looking at the e-mail, stating it was to up-setting.
    I contacted a regional mental health group that specializes it working with seniors with additions and arranged a meeting if I could get mother to come. I asked my step-dad's other brother is he would help me with this, he said yes and then I never heard from him again.
    Finally, my ace was to threaten to call her brothers in Germany and let them know what kind of trouble she is in. She promise to have stopped drinking, so we started contact again.
    It was while doing some work at their home that I found the will, sitting on top of the table in the guest bedroom, it was dated a couple of weeks before I threaten to tell her brothers. I left without explanation.
    She may never have stopped drinking but with her health issues and early dementia it is a recipe for disaster. I believe my sister was been an instigator to further drive us apart.
    What do you suggest as a course of action to correct this?

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    1. Not being an addictions counsellor, I have nothing to say about how to deal with someone's drinking problem. Nor can I offer anything to do with your sister driving you apart. Although you didn't ask anything about the will, I assume that's what you're actually asking about, since this is a wills and estates blog. You asked how to "correct" this, but so far I don't see the mistake. Your mother is entitled to make a will leaving her estate to whoever she wants. She doesn't have to include you if she doesn't want to. The fact that your mother is an alcoholic doesn't prevent her from making a will.

      An issue that might exist here is that your sister may, according to you, be influencing your mother to make a will in her favour. This is pretty hard to prove, but a good place to start would be to compare the current will to old wills in terms of who was included. Perhaps you were never to be included. Perhaps your mother is upset with you for your efforts to prevent her from drinking.

      As for your statement that you didn't see any harm in reading the new version of the will, what happened to privacy? And now you're looking for legal advice against your sister; I'd say some harm has been done.

      Lynne

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  16. Hi lynn
    I need your help please. do I have a case if I contest my father's will which named his three children and some of his grandchildren as beneficiary to his estate? my dad left his children equal share and also left shares to my two other siblings children but nothing for my children. due i believe his will was influence? YES can my share be court ordered for my children.

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    1. No. I don't think you have a case. People are not required to leave anything to their grandchildren, period. If they choose to include some and not others, they are entitled to do so.

      Lynne

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  17. A few years ago my mother died of heart attack and police came to investigate her death as they thought my father was involved somehow. He had written a book about How to commit suicide and it was found by her bedside table. After 4 hours of questioning they left him and ruled it a heartattack. He had her cremated right away without consulting his children and refused to have a funeral. I came across the will during this time and it turns out that my parents left everything to my one sibling. They left $1 to me (their son) and $500 to each of my kids but nothing else. They claim the reason for this is because they hate my wife so much and because I chose to remain with her I was disinherited. My father has recently passed away from brain cancer. Is there anyway I can contest this will as my one sibling will inherit everything from the sizable estate.

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    1. You mention finding "the will", which sounds as if you mean your mother's will, but her estate appears to have been settled already. I have to assume that your parents had mirror wills, i.e. wills that have the same contents as each other.

      If you live in BC, you can contest the unfair distribution under the Wills Variation Act. Other provinces don't have the same law.

      Since both your parents have passed away, how do they "claim" that it's about your wife? Did they discuss this with you before they passed away? If so, I believe that this works against any claim you might bring, as it shows they understood exactly what they were doing.

      Your parents are not obligated to leave anything to you unless you are handicapped to the point that you cannot earn a living. I know this may be hard to accept.

      Lynne

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  18. My mother in law died in August 2012. She was suffering from dementia and was in a nursing home. My sister in law had power of attorney and is the executor of the will. To date nobody has seen the will nor has the estate been settled. My sister in law says the will names her as sole beneficiary and that she can do whatever she wants with the estate. She has offered to send us the part of the will that states that but refuses to send anyone the entire document. However my mother in law always said that all of her children would inherit an equal portion There are 6 brothers and sisters, all who were told the same thing. At present the plan is to probate the will so the beneficiaries can know exactly what it said. My question is if the will does name only the one sibling as beneficiary, can the others realistically contest the will. They feel that my mother in law did not mean to disinherit her children but meant to trust one with dispersing the proceeds of the estate.
    There is also the issue that my sister in law may have spent the money on herself while she had power of attorney and she is taking this evasive attitude to cover up her appropriation of the funds. If this ends up being the case, can she not only be sued civilly, but also brought up on legal charges for essentially stealing her mothers assets. I should note we are not talking about a lot of money, less than $20,000 each, so it's not the money they are particularly worried about, it's the betrayal.

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    1. In my view, one person in charge of both the power of attorney and the will, and a will that goes against the testator's often-repeated wishes, is a perfect storm. I know it's not the money that matters, and I agree this is worth following up. Getting the will probated is a good idea, but as you already know, it's just a start. I would look out for assets that were put into joint names while the power of attorney was in effect, or changes to beneficiary designations during that time. Neither of those is legally acceptable. You are right also to look for spending that did not directly benefit your mother.

      Both civil action and criminal charges may be appropriate. In Canada we have a specific crime that is called theft by power of attorney. I wish more people knew about it and that more people acting under POA respected it.

      Lynne

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

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    1. I can't imagine not contesting this situation. If she was his wife and he left her nothing, she has an automatic right to petition for a share of the estate. Her children from a previous marriage most likely have no claim at all, but she sure does. She should talk to a lawyer, with full details of the length of the marriage, the estate assets etc. She needs to do this quickly before the estate gets too far.

      Lynne

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  20. My husband passed away in Sept. He had given his children $35,000 each before he passed away. I am his second wife. . He left his RSP account and life insurance policy to me his wife. My step-sons are now wanting more money stating Section 2 of the Wills Variation Act RSBC 1996, Chapter 490. Saying not only were there not proper provision for maintenance and support of his sons but also that he did not provide testamentary or inter vivos for the benefit of his adult children. So will the court overturn my husbands wishes and give them the money they are so greedily seeking. These adult boys make over $100,000 per year. What is the sense having beneficiaries if a kid that doesn't like things just has it overturned.

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    1. It's possible that the court may change the distribution set up by your husband. Any changes made by the courts must be based on fairness, and on the idea that the children were not adequately provided for. If they are already well off, and they already received a gift of cash, their chances of success are reduced. The RRSP and insurance policy that you mentioned name you specifically as beneficiary, and don't fall into the estate. However, I assume there are other assets in the estate, and that is what the children will be after. The judge will be looking at whether they received enough from the estate, given all of the circumstances.

      I agree with your question about the usefulness of this law that allows people to challenge wills in this way. BC is the only province in Canada that has it, though all provinces allow a dependent to ask for more. In other provinces, adult sons making a good living would not qualify as dependents.

      Lynne

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    2. I'm just reading the above one about Wills Variation Act. It sound like the step-sons don't have a leg to stand on regarding the RRSP and insurance policy. So unless this guy had huge amounts of money elsewhere how would the Wills Variation Act help them get support. What is there is NO money in this guys account. Will the judge turn over part of the RSP and life insurance policy even though the wife is the beneficiary.

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  21. Hi Lynne, My mother died with a will in which I was left her home and my two sisters were left the rest of her money. The will went through probate and the title o the house was transferred to me. The house has since been sold and now my sisters are going to contest the will. If the challenge is successful will I have to return the money from the sale of the house to the estate?

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    1. So, you sold a house that you legally owned, and your siblings suddenly think you got more than they did? Tough for them. If the will was valid, and it sounds as if it was, then your greedy sisters are out of luck.

      Lynne

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  22. My father recently passed away and a few months prior to his passing had a new will drawn up while he was in the midst of a secondary cancer surgery and chemotherapy treatments he wss 84 yrs of age and had a woman who he had an on and off relationship with for a few years. Long story short they were not together when he was first ill but once she found out he was she started to manipulate my father and once she had gotten access to his original will she had obviously not been in it as all of a sudden he had a new will drawn up while in the midst of all that was going on and she somehow had coerced him. The lawyer had to come to my fathers home I come to find out and she was sitting right there and knowing my father and how ill he was just went along with whatever she wanted and now after his passing we come to find out he has left her his home all possesions his automobile(she had one of her own) and was made Executrix and Trustee of the will and 6weeks have passed by and I had asked for an accounting sumnary of the estate as my brother and I are to spkit the residuals of his estate 3ways with us having 2/3 and her 1. But now his lawyer is saying to me she is ill and has not told him what she plans on doing and in the meantime we are left in the dark and knowing my father and what he had told both of us boys is that our children would be taken care of as well as both of us and we would get the home and property to divide equally betwwen us but now that she got involved and he even named her his spouse. How do I move forward I have limited income as i am a permanently injured . What ca I do or should be doing that I haven't already tried to do Thank You Scott B.

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    1. I sent you a previous reply but it is not published yet but I forgot other details such as my mother never gave us a full accounting of my father's estate, we were children when he died, but I never saw any money from his estate, and no record of the expenses of raising us, same thing for my uncle's estate. My mother is alleged to have forged my grandmother's will to deprive me of my share. We are talking large amounts here. What do you think? Do I have a shot? Thanks

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  23. My mother died recently. I have heard that she left me $1 in the will although in her previous will, she left me everything. Since that will, she has made 2 or more wills, and her estate has gone to her carekeepers. I have proof in emails, them not paying my mother's phone bill, that they were exerting undue influence. Also, I just found out that my mother forged my grandmother's will so that she would be the sole beneficiary but this was 20 years ago. She admitted it to a friend who just told me. Also, my mother was abusive, she beat me mercilessly when I was a child. What do you think of my case?

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    1. I assume that the case you mention is a challenge to your mother's will. The facts of this situation concern me, particularly the fact that your mother is leaving her estate to her caregivers. You don't mention whether those caregivers are family members or paid caregivers. Either way it's concerning, but particularly so if they are not family members who might logically be named as beneficiaries.

      Undue influence is a reason to challenge a will, but I don't see what not paying the phone bill has to do with it. Undue influence means that someone has forced or persuaded your mother to change her will to what they want, rather than what she would do if left alone.

      Usually when someone is left $1 in a will, it's because there is a widespread idea that leaving someone $1 will prevent them from suing. That isn't true.

      If you live in BC, you may challenge your mother's will under the Wills Variation Act, on the grounds that it is unfair.

      If you live anywhere in Canada, you can challenge the will based on undue influence. You will need an experienced lawyer to help you with this. Be aware that this is ugly litigation that is expensive and lengthy. However, if your mother was victimized, a challenge to the will is the way to expose that.

      Best of luck,
      Lynne

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  24. My grandmother passed just under a year ago with a will. In her will she left everything to her husband, with whom her children/grandchildren did not like or consider part of the family and for good reason- but no need to go into detail here.

    He recently passed as well.

    In her will she named her husband as the executor and myself ( to act separate if he were to predecease her). I'm assuming since he was alive that is why I was never informed and had no knowledge of this.
    At the time of her death her eldest son said he was the executor on her estate and took care of the funeral arrangements and further assisting her husband to transfer assets into his name as he was the sole beneficiary provided he outlive my grandmother.

    Apparently I was also named as the executor on his estate.

    However, as her eldest son (my uncle) assisted him in transferring her assets into his name he had him make his bank account joint and name him the new sole beneficiary of her investment accounts. And also had him change his will taking me off as the executor and naming him as the new executor.
    Beyond that I don't know what else has been changed in the will, as I've never scene either will (My grandmother or her husbands).
    Now all the liquid assets that were my grandmother are now in her sons name leaving them out of the estate.
    I've been told now close to a year later that I was the executor and may need to sign some docs. so he can sell the house.
    From previous conversations with my grandmother before she passed she had named all four of her children as beneficiaries (myself not included and that's not a problem).
    Do my aunts and other uncle have any recourse to have the assets included in the estate the he had her husband put into his name.
    And am I able to challenge the change of executors on the will and handle the estate for my aunt and uncle?
    Unfortunately the one who is currently acting is not providing any information to the beneficiaries (if they still are he may have had her husband change that too).

    And what he has done thus far by getting things put just into his name does not seem right.

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    1. If you are finding out a year later that you are the executor and are being asked to sign something, don't sign ANYTHING until you have consulted with a lawyer. If you are named as the executor then you and only you have the right to deal with estate assets. You have the right to demand possession of the will and possession of all estate assets.

      I find the level of interference in this family to be unbelievable. If I am reading your question correctly (and I may not be, with all of the personal pronouns involved), then the assets passed from your grandmother to her husband. Then when her husband died, your uncle transferred the assets into his name. I believe you mean into his personal name and not in his name as executor.

      It no longer matters who your grandmother left her assets to. That estate is done. The only estate to deal with is the husband's estate. It doesn't matter if anyone liked him; it was your grandmother's will and her money.

      You can challenge the change of executors if you can prove that the husband was coerced, forced, or tricked into making the change. That's not easy to prove, but it does happen.

      Yes, the other beneficiaries definitely have recourse with respect to the assets. If there really is a will leaving them part of the estate, then they are legally entitled to have it. If the uncle will not respond to requests to account for the money and pay out the shares to the beneficiary, they may take him to court. Possible outcomes are removing him as an executor, forcing an accounting, forcing payment to the beneficiaries, reduction of his executor's fee and possibly even criminal charges.

      You are right, this uncle does seem to be just bullying his way through the estate. Perhaps the beneficiaries could get together and consult an experienced estate lawyer.

      Hope it works out.
      Lynne

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    2. Thank you for your quick reply.

      To clear up a few items. Yes my Grandmother assets were transferred into her husbands name; which is fine he was the beneficiary.
      However as my uncle assisted her husband the bank account was made joint between them and investment account changed to name my uncle as the beneficiary.

      Her husband had a mirror image of my grandmas will naming her four children as the beneficiaries, unfortunately all liquid assets are now in my uncles name.
      I just found out my uncle was also trying to have him transfer title of the house into my uncles name...but was unsuccessful. Tilte to the house should have been put into her husband name but was never done. The house title is still in my grandmas name.
      The more I dig the complex it all is.
      I'm defiantly seeking sound advice and have been in contact with a lawyer. And questioning the codicil to the will changing the executors.

      Delete
  25. my mother and brother have been estranged for year...off and on since he was a teenager. both my parents over the years claimed he was to get nothing, which in my heart of hearts think that is wrong. My father died several years ago and my mother my mother has continued with her wishes as well as to state I am the poa and executor of the will. Over 2 yrs ago, we noticed her memory starting to wayne and I took her to the dr. on that particular day, he felt she was ok, but told us to keep mental notes. Approximately a yr ago, my brother came back on the scene, which I was grateful for and thought we could share the load as we had been making sure she was doing ok and including her in all my inlaws activities since my fathers death. Her mind is really mixed up now and I have been in contact with a social worker to help me deal with her medical issues. I have been in contact with my brother to find out he has become the executor of the will...this was done right about the time he showed back up on her doorstep. I have no knowledge of what is in the will, but if it has been changed to exclude me or my children, would to dr. appt. over 2 yrs prior be enough to challenge it if need be?

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    1. I think that if the will has been changed to exclude you, then yes, you might consider challenging it. I assume that if a change excludes you, then it gives everything to your brother. The fact that he showed up after many years at a time when her mental capacity was weakened, and ended up as executor and beneficiary would just be too suspicious. The doctor's appointments would be an important source of information as to her condition at the time the will was changed. I wonder whether there was a lawyer involved in changing the will, or whether it was "home-made". If it was home-made, it would be easier to challenge, in my view. This is simply because if the will had been drawn by a lawyer, the lawyer would presumably have done his or her job by documenting your mother's mental capacity on the day instructions were given, as well as on the day the will was signed. I have my fingers crossed for you on this one, and hoping it was just a change of executorship and nothing more.

      Lynne

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  26. Hi Lynne: I left a comment Dec. 19 and I have yet to hear from you. I didn't comment as anonymous because I have no reason to hide. I really would like some advice so that I can move forward I feel that I should be contesting the Will as my father if left alone would have never left the majority of his estate to this woman. He was definitely coerced "undue influence" as he already had a Will and just made a new one after he was into a second cancer surgery and chemotherapy and passed 3 1/2 months after the new Will was drawn up by a new lawyer. The woman was not mentioned in his other Will at all and a new Will was not needed as he had already had one. I know it will be costly and I have a very limited income so how do I find a lawyer that would be interested in taking on such a case based on undue influence and be paid after the case was fought in a court? Thanks

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    1. Paying a lawyer out of the proceeds of a case is called a contingency arrangement. In it, you don't pay fees until the case is won, and the fees are paid out of the winnings.

      This is not often done with will contests. There is just no way to predict whether you will be successful in your lawsuit, even with good arguments on your side. And even if you win, there is no guarantee you will get anything from the estate. That would depend on how the estate is being divided up in the absence of a will, as well as on how much has been used to pay for the court action (if any). If you win, you might be awarded costs from the estate, but then again, you might not.

      In other words, there is very little guarantee that any funds are going to come your way, so it's pretty darn risky for a lawyer to say she'll do the work first and get paid later. If you don't get anything from the lawsuit, you will still owe the lawyer money, and she'll have to trust you to pay it or take you to court to get it.

      This is not to say that no lawyers would take on your case, but it's not going to be easy to find one. All you can do is make appointments with any you can find in your area who say they do a lot of wills work, and ask the question right up front.

      Lynne

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  27. My mother passed away 2.5 years ago, her and her sister were co - executors of my grandmothers estate. My grandmother just passed away I was told from my aunt and my grandmother, that my mothers portion would be divided equally among her children. I found out today my aunt talked or forced my grandmother, I do not know for sure, into signing over her home and land to my aunt and changing her will, leaving nothing to my mothers family. My gramma was 93. Is this grounds to contest the will?

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  28. My step-mother, sister and I were named as co-executors in my father's will. His will stated that my step-mother was to receive everything except for money which had been placed in a numbered trust in her name for his children. Our step-mother advised us, as co-executors, that she knew nothing about this trust, that there was no money as stated in the will, and that our father had spent all his money except what he left her (RIFS), When my sister and I contacted the Investment company where these funds were held we were told we needed our step-mother's permission to look at the account. My step-mother said she would let the Investment company know it was okay, but did not. She then advised me she had changed her will, removing the mirror clause (should she die first, our father was to give her children an amount of money equivalent to what he had placed in trust in her name for us). At the same time, she put the house solely in her name. Despite our continued requests, our step-mom has not provided us the supporting documents. To date we siblings have spent over $8,000 in legal fees trying to obtain this information and are now, over 2 years since our initial request, going to Discovery. We have been advised by our step-mother's lawyer that we are running the risk of having to pay her legal costs. I am flabbergasted. Is it not our duty as co-executors to find out what happened to this account? Is what our step-mom done not equivalent to contesting the will?

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  29. When my mother passed away she left no will and her estate went to my step father.
    And now that he has passed away, I recieved a copy of the will 6 months later from the probate lawyer.
    In the will I was deliberatley left out and the person who my step dad was living with got it all, aswell as having convinced my step dad to give her power of attorney.

    Now the reason given was that I had caused him grief allegedly and that he hadn't seen me in a very long time, which is an outright lie. Can I contest the will?

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  30. Hello, my uncle passed away in early Jan 2014. My Aunt, (uncles brothers wife) and I tried to plan the funeral but the executors blocked us from planning with cryptic statements and wouldn't release the body as they said they had to wait for the lawyer (who attested the will) returns from vacation in mid Feb because he had some information about the will (in his head). we found this all very strange but went along with it. The lawyer has returned and we found out that no immediate family member are mentioned in the will and most of my uncles sizable estate has been left to a friend. Some background. My uncle, father, uncles and grandfathers all made money from a family business back dating back to 1957. That business was desolved effectively when my grandfather passed away in 2000 leaving his estate to be split 25% to each brother less any loans they took out against their enheiritance. There was a big family fight in court with half the family on one side and my uncle and the other half of the family on the other. We/I have supported my uncle through this fight (for which he received a sizable sum of money) and I lost relationships with my father (now deceased) and uncle. Over the years my aunt, and her 2 children have been very close with our uncle and considered him more of a father than anything else. That is why it is so concerning that he left us nothing. The will the executors have is dated 2007. My aunt swears that my uncle in 2010 was making a new will as back in 2007 he was on heavymedication for an illness and we think may have effected his judgment. The house that my uncle lived now belongs to someone we all do not know and all our family momentoes dating back decades are contained there. My 2 cousins and I are considering contesting the will as we do not believe that the will reflects our uncles last wishes and we do not feel that family momentoes and family money should go to a none family member. I have had recent conversations with my uncle about him taking care of his nieces and nephews that he is close with but the current will does not reflect that and frankly was a huge shock to us all. Do you think we have grounds to persue this course.

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    1. I assume from the fact that the 2007 will was probated that an intensive search did not turn up any new will in 2010. I also assume that the aunt who gave you this information is not the wife of the deceased uncle, as his estate would most likely have been left to her if she were the spouse.

      There are two things to consider here. One is your chance of success in contesting the will. The other is what would happen with the estate if you were successful in contesting the will.

      Understand that when someone contests a will, you are not able to ask the judge to re-write it in your favour. You are asking the judge to declare the will invalid entirely. Either the will stands as it is, or it doesn't.

      The belief that your uncle did not have the sound mind needed to prepare a will in 2007 is a valid ground for contesting a will. However, you can't just allege it; you have to prove it. This is not impossible, but it is really hard. Consider what hard evidence you have to back up your claim (e.g. knowledge of what meds he was taking, doctor's reports, hospital records, etc).

      As I said, the second issue to consider is what would happen with the estate if you were successful in having the will declared invalid. The estate would be distributed according to provincial intestacy laws. Some portion of the estate (the amount varies province to province) would go to your uncle's spouse, if he had one. If not, it would go to his children. If he had no children or grandchildren, the estate would go to his parents. If he had no spouse, children, grandchildren, or parents, it would go to his siblings. As a niece or nephew, you would not be included unless your parent was your uncle's sibling and your parent had passed away before your uncle.

      All of the family politics of who supported who would not be relevant. People always think that loyalty and support create legal rights, but they do not. Your uncle is entitled to leave his estate to whomever he wishes, so long as he has the mental capacity.

      In my opinion, the best thing you could do is look more thoroughly into the existence of the 2010 will. However, it sounds as if this estate has pretty much been wound up already, as you said everything now belongs to someone else.

      Lynne

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  31. I am the youngest of six siblings. My dad wants me to be the sole inheritor of his land. My siblings all know this, it has all been discussed openly, but some of my siblings are still threatening to contest his will. What are my rights as the inheritor and what can I or my dad do to protect me from future trouble? How much is the law on the side of the inheritor? How difficult would it be for them to contest the will and what reasons would they have to give in order to make that possible? Is it a mistake to put only me on the will as inheritor is my dad obligated under the law to leave something to each sibling?

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  32. Is it a good idea to add someone to the land title in addition to your will in order to ensure that your will cannot be contested?

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    1. Hi. My answer was really long, so I made it into a new blog post on March 16/14. Here is the link: http://estatelawcanada.blogspot.ca/2014/03/six-things-to-consider-before-adding.html

      Lynne

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  33. anonymous March 22, 2014

    My only child/son is 40yr. His father and I divorced 30 years ago. His father lived common law with a women for the past 20 years. She already had a daughter.
    My ex's father died 20 years ago, then he died 6 years ago. He was the only child & this resulted in his mother (my sons 'Granny' ) getting dementia. She had a will which still left everything to her son and his beneficiary was his/my son who was close to Granny.
    However, after his dad died the common law wife was given power of attorney for granny & at some point she took 'Granny' to the lawyers & had the will changed, which left the entire estate to her.
    It had always been understood that her only grandchild would inherit the house. He had planned on bringing up his family in the same house his dad grew up in.
    There is probably a substantial amount in the bank also but this is not the main issue, the house is.
    Would you contest this will if you were him?

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    1. I'd certainly think about it. The circumstances of the changes to the will are definitely suspicious. It doesn't really matter "what has always been understood", but it does matter if this new will was a major change from the old will. And it does matter if a person acting under a POA takes steps to a) allow a person with diminished capacity to sign legal documents, and b) bring about financial gain for herself.

      Lynne

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  34. Hi Lynne,
    27 years ago my father and stepmother made identical wills naming the same beneficiaries that included her 2 children and my fathers 4 children (including myself) They both agreed on the same charities also, He finally agreed to include her children despite the fact that they were all grown when they married and he never raised them. He felt that they already had a father to leave them something. He was very torn about this but he finally relented and included them. Which is fine. He died 8 months later.

    27 years later, my stepmother, who never remarried, passed away and left everything to her children. She had changed the will 5 years before dying of Alzheimers.

    There's not a lot of money, but most of what my father had was from savings from being married to my mother for 27 years and her insurance policy from when she died at age 50.

    I can't seem to get out of my head how clear he was that he wanted to take care of my stepmother after his death, but also wanted to make sure that the beneficiaries that they named in there wills before he died, would remain the same after she died. They left everything to each other in their wills that they prepared together. I have a copy of his half of the will but not hers. I have no way of knowing if this was a mutual or mirror will.

    How would I get a copy of what actually took place at the lawyers office before he died? I would assume that would include seeing the part that she signed and any lawyers notes?

    He was a minister for 33 years and one of the beneficiaries that they agreed on was the denomination that he served. She took that out in her new will. I know this may just be sentimentality but I keep thinking how he was so firm about making sure the beneficiaries that were named be honoured. We did talk about it as he neared death.

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    1. Because my answer was so lengthy, I made it into a new blog post on March 27/14. Here is the link: http://estatelawcanada.blogspot.ca/2014/03/husband-and-wife-had-identical-wills.html

      Lynne

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    2. This comment has been removed by the author.

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  35. Hi, Lynne,

    My father passed away in June 2013 and since then my sisters and I have been trying to figure out how to get a hold of his remaining assets, the only thing being an RRSP of ~$130k. I just found out now that the day before he died he create a will, all going to his common law wife. My current estate lawyer was trying to use the basis of my two sisters (19 years old) - that they have a dependency on his assets because they have huge OSAP loans and will continue to incur more as they complete university. At the time of my father's death he had racked up about $90k of child support of which he never paid a dime, and about 12 years ago we had to sell our condo to pay off all his debts, making us live below the poverty line (3 children) under my mother's single $30k income. I know you outlined only 3 ways to contest a will - do I have a case still, taking into account that my father wrote a will specifically only benefiting the common law woman he was with for the last 6 years?

    Thanks!

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    1. The first thing I wondered when I read your question is whether the RRSP has a designated beneficiary. If so, it's not controlled by the will. However, you are talking about the lawyer making a dependency claim against the estate, so perhaps the RRSP was left to the estate, with the will leaving the estate to the CL wife.

      If the RRSP is in the estate, then the Public Trustee for the province should be notified so that they can claim the outstanding child support as a debt of the estate. This would mean they would get paid all arrears as well as any ongoing amounts before the CL wife received anything.

      Making a claim against the estate on behalf of a dependent such as a 19-year-old student is not simple, but it is certainly a common step. There is nothing unusual about it. I don't know whether you'd recover all of their student loans, but a claim to cover their basic living expenses would certainly be expected.

      It sounds to me as if the lawyer you are working with knows what he/she is doing with respect to making a claim on behalf of your siblings.

      Lynne

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  36. I have just found out that my mother's only brother passed away in 2007. His wife predeceased him, they had no children and resided in BC. Can I make a claim against his estate?

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  37. Hi Lynne
    What if your parent wants to leave you, an adult child, his estate for reasons that you are his sole caregiver and also because his other children are well off and you have nothing? I have been left as the sole inheritor in his will for these reasons but my sisters and my brother in law are planning to make trouble for me. So my dad is now thinking of signing his land over to me while he is still living hoping to spare me this trouble Will it work? Can they still try to get part of it? What is the proper way to go about this to ensure his wishes are met without legal trouble for me?

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  38. My brother who made out a will in 2002, leaving his estate to his "kids" equally, died March 2014. One of his "kids" was his biological daughter, a minor, and the other was his stepson, now a young adult. Should his lawyer at the time not have pointed out that in order for his stepchild to inherit, my brother would have to name him per se in the will? We how have a situation where the daughter who was hostile and estranged from her father for several months preceding his death likely to inherit all his assets while his stepson who still maintained a relationship with his stepfather and was there for him in the months leading up to his death, left out of any inheritance whatsoever. If the stepson, who was not adopted by my brother cannot challenge the will, what about suing the lawyer who drew up the will neglecting to counsel my brother on the ramifications of not naming his stepson?

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    1. My response to this excellent question was so long, I made it into a new blog post. Here is the link: http://estatelawcanada.blogspot.ca/2014/06/a-disappointed-beneficiary-can-sue.html

      Lynne

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  39. Hi Lynne: I posted to this blog back in November of 2013 and you did not reply I used my name so u will try this again as anonymous. My father passed away in early November 2013 and as we had found out after he had his Will re-done in July while he was into a second cancer surgery and chemotherapy treatments. A woman who he had a on and off again and again relationship and referred to her as a paid caregiver found out he was vert ill and moved right inand her son also lived there to, but had kept an apartment until late September and had another home that her and her son had as an investment but sold it in May of 2013. Now in his will he denounced all other wills and named her as his spouse which she wasn't and her as executor and trustee. Before he passed she had told my brother and I that she had purchased my fathers home. Now that after he had passed we find out he left her everything and had put aside an account with some money to be split # ways between my brother, her and I. Now I have asked his lawyer twice for an accounting summary of the estates residuals once in late November and once in December. He sent me a copy of the will (which i already had)and nothing since. I want to contest his will but financially I am unable to afford to retain a lawyer and she has zero contact with my brother nor I and has done nothing. I find it unbelievable that he would have his will re-done in July when he was so ill. I know that she had everything to do with coercing him into this and that his lawyer should have advised him that he already had all of his final arrangements in order for years and why would you want to change everything now that you are so ill. Do you think a lawyer would take on this case on a percentage payment plan and with an undue influence being the motivation for contesting his will? I am a permanently Injured worker for ten years in August of 2014 that my WSIB cheque has been cut back by 70% in December of 2012 and have been waiting for a WSIB Tribunal date for almost 2 years this has caused my family to now live well below the poverty line and I had to recently make a Financial proposal to my creditors because of my financial situation. I know that if my father had known that this woman wouldn't have done this correctly and swiftly that he would have never left her practically everything and all the power to screw over my family and my brother as well. She lied about the sale of the home she never but once came to the hospital in the final 2 months of my father's life which really upset him in the end severely. And she knows my financial situation that we could've used the money he left to us to save my credit rating and it really just would have helped a lot. So what do you think, will I be able to find a lawyer that would take this on getting a percentage after we win and do I have grounds to contest due to undue influence? I just know my father wouldn't have done this it was way out of his character and I was shocked when I realized what she had made him do while he was not in his right mind. Confused and financially broke. Thanks

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    1. Sometimes I end up not answering a post simply because it is clear to me that the person writing to me needs a heck of a lot more guidance than I could possibly suggest through a blog post.

      Yes, sometimes lawyers will take on lawsuits based on a contingency, meaning they take a percentage of the financial award. However, when you're contesting a will, there isn't a financial award. The end result of the lawsuit is not money being paid to you; it is the collapse of a will, which may or may not in time result in you receiving funds. For this reason, it's pretty hard to find a lawyer who will agree to take a percentage, since there isn't anything to take a percentage of.

      However, if the law of intestacy in your province would mean that on collapse of the will, you would be a beneficiary of the will, you still might be able to find a lawyer who will help you. You would have to sign an Assignment of your share of the estate over to the lawyer for payment, with any portion not being used for payment being returned to you.

      The story you've told me about this caregiver woman is really disturbing. It really does sound as if she has completely taken advantage of your father.

      While your financial situation is relevant because it explains why it's tough for you to hire a lawyer, it has no relevance at all in how your father's estate is distributed. It's not about what you need; it's about what he wanted to do. And I agree with you that it appears someone influenced his choices.

      Lynne

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  40. Hi Lynne,

    My mother predeceased my grandmother who recently passed away. All of her 3 children were given equal share of her half share of her house that she had as tenant in common with my grandfather. My mother was not included and was taken out of my grandmothers will in 2002 for no apparent reason. The other 3 children are to be given their share per stirpes which I understand to mean that my aunts and uncle's children would receive their share if they were to die.

    My mother was beloved by my grandmother and we are confused as to why my mother was taken out of the will so abruptly. My aunts and uncle seem to be perfectly content with my mother being left out and I feel may have influenced her but have no proof.

    My grandmother also developed severe Alzheimer's disease a few years after 2002.

    Would I have any basis to contest?

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    1. This probably isn't the answer you want to hear, but from what you've told me, I don't see any basis to contest your grandmother's will.

      You said that your mother was taken out of the will for no apparent reason. That means that the reason was not apparent to you, but it may have made perfect sense to your grandmother. She could have left your mother's share to you, but perhaps that wasn't what she wanted to do.

      The fact that your mother was taken out of the will in no way implies that she was not beloved.

      You said that your grandmother developed Alzheimer's disease sometime after making her will, which implies that she was still of sound mind when the will was made. I know it doesn't make sense to you, but people don't always do what we would have done in their shoes.

      It's possible that your aunts and uncles influenced your grandmother, though as you say, you have no proof of that. Unfortunately, a lawsuit cannot proceed where there is no proof.

      If you live in BC, there is a possibility of asking the court to change the distribution on fairness grounds, but not so in the rest of Canada.

      Lynne

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  41. Hi Lynne
    I live in the UK and my Father died some years ago in Vancover, Canada. I was not notified that he was ill let alone had passed away until I managed to track a phone number down for him and his then wife proceed to tell me he had passed away. I find it quite strange due to the fact I had been in touch with him quite regularly previous to this because of the pending birth of my son his first grandchild. Her excuse to me was she couldn't find any contact details for me, bit strange when my mother had lived and still does live in the same house and with the same phone number for the last 30 years, and they had talked in the lead up to the birth. Its not that I would ever want anything from him or her but by not contacting me it leads me to believe she may be hiding something, just find it all very strange. Is there anyway I can find out if he had a will or what his estate was worth.

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    Replies
    1. I assume that what you really mean to ask is whether you can find this out without asking his wife. Obviously what most people would do is simply ask the spouse. Her failure to notify you could well be nothing more than her unwillingness to speak with your mother, or her belief that you were not interested. After all, you said yourself that you had to "track down" a phone number for him, leading me to believe quite some time had passed, and you didn't ask your mother if she had their number either.

      If you do not wish to ask a direct question of your father's widow, your best bet would be to contact the Supreme Court of BC in Vancouver. As you are a child of the deceased, you should be able to obtain a copy of any documents that were filed with the court. If your father's wife applied for probate, the filed documents would include a copy of the will and an inventory of the estate.

      Keep in mind though that there might not have been a probate application. If your father owned property jointly with his wife, or if he had assets such as an RRSP that named her as beneficiary, there is no need for probate to deal with those assets.

      Lynne

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  42. Hi Lynne
    We reside in Alberta.
    My mother recently passed away and did not leave a will. Below is the current state of matters:
    She owned a condo with an outstanding mortgage ($280,000 condo with $50,000 mortgage). Weeks prior to her death my sister took her out of the hospital and added her name (My sister’s name) to the property. She had also drafted an enduring power of attorney and personal directive in January. Two joint accounts were drafted (Unknown value) an existing checking account ($550,000) where she is listed as the sole beneficiary and a security deposit box with signing rights to my sister. There are two properties in early stages of being built so the titles are still under the builder’s name (they are not willing to share information at this time regarding whose name the properties are under). There is a 15yr. guaranteed pension ($2,000/mo.) where she is also listed as the sole beneficiary. Finally there are $120,000 in RRSP’s which both of us (My sister and I) are listed as beneficiaries.
    Because there is no will, the funeral home’s drafted death certificate lists both of us (my sister and I) as executors.
    My sister has a piece of paper she claims my mother wrote and back dated with no signature where it is alleged she (My sister) is the executor.
    Here are my questions:
    Is my sister able to access all of the assets where she is listed as the sole beneficiary immediately?
    She is pressuring me right now to go to the bank to collect the RRSP’s so she is able to “settle my mother’s affairs”. If I do not go to the bank or sign papers, is there a risk the RRSP’s will go to the government? How long can I wait until going to the bank for the RRSP’s or signing anything?
    My mother lived with me for the last 8 years where I took care of her. She wanted us to split everything 50/50 and she made this clear to family and myself.
    I know I may not have a leg to stand on legally when it comes to her (My sister) being the only beneficiary and owner of the property, but is she able to take hold of everything else right now leaving the RRSP’s to be used in order to settle any taxes owing?
    What about her personal effects in my house? She has already demanded a number of items to be given to her, which I have complied with and provided. I would like to move forward and clean her room, but I am not sure how long I need to wait in case my sister wants something else. How long am I obligated to keep my mother’s things? I do not want her to sue me.

    Thank you.

    ReplyDelete
  43. Hi Lynne,

    This is about a case in the province of Ontario. My father-in-law, who lives far away in another part of the province, survived his wife of over 20 years. My spouse has received the will in the mail as she is named in it. The most curious thing is that my father-in-law is not named in the will at all and therefore could not take part in the will reading. It is to be mentioned that he is of very ill health. The part that upsets us most in the will is that his wife claims the matrimonial home of many years as all hers as the title of the house is in her name. Nonetheless, we are of the opinion that according to Ontario law, it is still his matrimonial home. We are not aware of any prenuptual arrangements that would indecate otherwise. We are of the opinion that my father-in-law is entitled to half of the value of the home and that the will cannot pass on his half of the matrimonial home to any heirs as long as he is still alive. But this is what the will says. He was basically disowned in the will. Is there a good chance to contest the will under the premise that the deceased is giving something away that she did not own in the first place? The father-in-law has been very sick for many years and it was always "assumed" he would be gone first. Also, it is difficult to imagine that he -in his health condition- does fully understand what the will is doing to him, stripping him of his own part of the matrimonial home. I am of the opinion that the will in his current form is not valid as it is giving property away that the deceased did not own. What would a good course of action be?

    ReplyDelete
  44. Dear Lynn,

    I'm amazed that you take the time to answer everyone's questions. Sorry to add to your workload but I have one.

    My father died in February at the age of 99. He had very little money left by then and the majority of us (nine children) just wanted him to use his money while he was still alive. In 2006 he and my mother gave their cabin at the lake in Saskatchewan to four of our siblings who lived near them. They asked me at the time (not one of the four) if I was okay with it and of course I was. The cabin was sold last year and fetched $100,000. The four siblings who took over the cabin (both as owners and caretakers) put in close to $30,000 paying for the lease, taxes, maintenance, etc. Now, two of our siblings (we are nine in total) believe they should get a share in the money from the sale, even though both of our parents were lucid and it was their wishes that four of their children take over the ownership. These two siblings claim mom and dad did not ask them if they were okay with the cabin going to four of the children. Did they need to ask? I don't think so. It was theirs to give.

    I just want my parents to rest in peace. Do these two siblings have any rights with the cabin?

    Thank you.
    Danette

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    Replies
    1. I can't imagine parents having to ask their kids for permission to sell an asset they legally own. Your siblings are falling into that trap that makes them think that because a parent is old, they have lost all of the rights and independence any adult should have. I agree with you that the cabin was theirs to deal with. If it had been a gift, there might have been a question about whether it was an advance on inheritance, but it was sold. I don't think your siblings have any claim at all on the proceeds of the cabin.

      Lynne
      P.S. depending on how busy I get at any particular time, not everyone's questions get answered :)

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  45. Hi Lynn,

    This is a followup to my previous email. I learned the cabin was sold for $1 (each) to my siblings in 2001 and a legal sale document was drawn up. The siblings sold the cabin more than two years ago. So, can the other siblings take action to try to get some of the proceeds from the sale?

    Thanks, Lynn.

    Kind regards,
    Danette

    ReplyDelete
    Replies
    1. Danette, I took both your posts into consideration when answering your question.

      Lynne

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  46. Thanks a million, Lynne, for your response. It's a relief. I know they are trying to say now that they didn't know about the cabin being sold to the younger four. The ugly side of the human race rears its head yet again.

    All the best to you! Much appreciate that you took the time to provide some clarity.

    Danette

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    Replies
    1. Hang in there, Danette. Yes, it's the ugly side but it's also the side that shows itself in almost every family. Here is what I've learned during my time as an estate lawyer: the kids equate the parents' estate with the parents' love. They cannot accept that one gets more money, because it appears that the parents favoured them or loved them more. So, it's not just about the money.

      Lynne

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  47. Hi Lynne,

    My dad recently passed away of cancer. A while back he told me I was beneficiary of his will and to make sure to take care of my step siblings. A week before he passed he was on lots of pain killers and very out of it but his wife still managed for him to go and get his will changed to everything in her name. It's been a month since he's passed and my step mom has managed to buy a salon, a pool, a new dog for her and a 2000 dollar dog for her daughter, a house for her son and I have seen nothing. I was supoosed to get belongings from my dad and she gave the excuse to not give them to me and now says I will not be seeing any of his money. I was his only son and we were bestfriends this is more of a respect matter then about the money that she clearly cared more about then to grieve for my dad. Do I have a case? Can I contest the will and win or at least freeze her assets for a while?

    sincerely,

    Robert

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  48. Please help me! My uncle passed away and left me nothing. I am the sole survivor and was supposed to be left the house and all belongings. It was all in my grandmother's name until she died. Her and I were really close... Once he received all her things including a house valued at 148k and around 400k in stocks. I was left nothing, he willed it all to charity! I'm heart broken and I've been retrieving all my families treasures out of the trash! Including photo albums and personal things that I can never replace! The case is in probate in Southwest Florida.... Can you please let me know if I can do anything as far as contesting the will, again, i'm the only family member left. Thank you.

    ReplyDelete
    Replies
    1. You sound so distressed. Obviously this is a really tough time for you. I don't think you are going to like my response here.

      As a nephew, you do not have any automatic right to inherit anything. It sounds as if he has a valid will in place, and he had the right to leave it to whoever he wanted.

      Having said that, I realize that I have only the barest of facts of your case. There may be additional facts in existence that change the situation. For example, you said that you were supposed to inherit the house. If this was a real understanding between you and your uncle, and you made life decisions based on his promise, then you might have a case for challenging the distribution under the will.

      The situation might also be different if you were disabled, and had been financially supported by your uncle at the time he died. That's a bit more of a stretch, but still a possibility.

      As this situation really seems to be upsetting you, I suggest that you consult an experienced estate lawyer local to you, and tell your story in complete detail.

      Hang in there.

      Lynne

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  49. Hi Lynne.

    I have a question regarding marital property. My father passed in 2012 and left his estate to be shared between myself, siblings and my-step mother. I always understood his estate would include his personal items. I now realize I was wrong. His personal items are instead considered jointly owned with my step-mother. Despite the fact that this distresses me, my mother died when I was very young, and some of the things are from that time - I am accepting it. However I would like to contest my father's personal poetry written over his life. Some is about me, my mother, and the past. My argument is that it's not chattel, or wasn't co-purchased, but instead it's personal intellectual property and should be considered part of the estate. This way is will be jointly owned, or divided up. Do you think I have a case?
    Thanks!

    ReplyDelete
  50. Hello.
    My Husband's Gradmother passed away in January 2007. We have recently been told by family that the total estate was to be divided equally and this was to include all Grandchildren. My husband's brother and all cousins all recieved about $30,000 from the estate. We have been informed by two family members that the Grandmother had been putting money into savings specifically for my husband since the Grandmother didn't believe that my husband's father would give my husband his inheritance, and it was apparent that the Grandmother played favorites with my husband. Can ANYTHING be done?

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  51. Kind of a bit stumped here. My partners grandmother died recently it was quite a shock as things deteriorated quite rapidly.

    In her family they have one estranged son that walked out on the family except the grandmother. He is seen as the golden boy in her eyes that couldn't do anything wrong. He caused a lot of heart ache in this family lets say it's a long story he seemed to have a very bitter view towards my partners family.

    Towards the end of her life she had changed her will. In the new will my partners name was not mentioned and the mother would not receive anything either but where as the estranged brother would recieve the majoirty of the estate and her other brother a small percentage. Her other brother and estranged brother get on and still talk as we found out recently.

    Now I have a strange suspicion that something has gone on behind everyones back I also find it odd that her grandmothers will is signed by the securitary and solicitor like the brother was advising her what to write. It does not seem like something she would write.

    Is there any way that my partner could contest the will as in the fact she was left nothing or would it be something to look into there was influence.

    ReplyDelete
    Replies
    1. Please try to remember that the fact that someone was estranged from everyone else just has nothing at all to do with this. He wasn't estranged from your grandmother, so there was no reason for her to leave him out of the will. It was her will, her money, not anyone else's. The family's view of him is simply irrelevant.

      There is nothing strange about a solicitor witnessing a will. I've witnessed thousands, as it is standard practice where the will is prepared in a law office.

      To answer your question about contesting the will, this is a complicated area of law. Your partner is not entitled to a share of the estate, since your partner is not a legal dependent of the grandmother. However, it is always possible that the grandmother was influenced to change her will. This is extremely difficult to prove, but not impossible. Look at circumstances such as how long before her death the change was made, and whether she was very ill or taking medications at the time. Try to find out whether the son was present when she saw the lawyer. Once you have as much evidence as you can get, go see a lawyer who has TONS of estate experience and have a frank discussion about the chances of success. This is hard litigation, so don't attempt it without pretty solid back-up.

      Lynne

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  52. Hi my stepfather passed away in July 2013 and in his will left everything to my mother who was with him for over 25 years. He had 2 sons and a daughter with previous marriage. We have the original will that was in their safety deposit box and got it notarized by a a different lawyer then the one that did up the will. My stepbrother is claiming we do not have a true copy of the will and is demanding we probate the in which everything was joint with my mom and or she was named beneficiary. He claims I must have the lawyer that did up the will read it to them. He believes my mom is hiding another will that has him and his siblings in it. He says he is going to take my mom to court but I don't see him having a case. What do you think?

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  53. Hi. My grandmother passed six years ago. My uncle was suppose to be the executor. He has done nothing or even maybe worse then nothing. He is no longer returning calls or communicating with family. How do I get my grandmothers estate taken care of

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  54. In 2004 my mother showed me her Will from 1996 which named the entire family including me and my children as beneficiaries. In 2009 the Will changed where only my sister and her husband were the sole beneficiaries. 28 months later mom was diagnosed with vascular dementia. However in 2009 prior to this new will being signed my sister took my mother to a family doctor and the letter read that the GP feels my mother was capable of making financial decisions, even though she had an extensive history of diabetes and mini strokes.

    It is therefore my opinion that my mother was not capable of making this new Will. I believe she should have been assessed by a geriatric specialist. Can I contest the Will which now leaves every family member out but my sister and her husband?
    My sister has now been diagnosed with cancer and has been given a few months to live. Can I also apply for Guardianship of my mother as I have been threatened by my sister’s husband in writing to not even bother.

    ReplyDelete
    Replies
    1. If your mother is still alive, then no you cannot contest her will. If she passes away and that is her valid will, you may choose to contest its validity at that time if you believe that you have sufficient evidence to do so.

      You didn't mention whether your sister is currently your mother's guardian, though it is implied in your question. The document that appoints her may well name an alternate who would step in if your sister is unable to carry on as guardian. If you have a copy of the guardianship order, read it with this in mind. If no alternate is appointed, you may wish to apply to be guardian. If you don't have a copy of the order, you may be able to get one from the nearest courthouse.

      Lynne

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  55. Thx Lynne
    The POA does not name an alternate. I will apply for Guardianship. I f granted I can gather all the evidence I need 400K is missing rom my mother's accounts

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  56. Hello,
    I am the adopted daughter of my father who passed away. I was not in the will as it was made many years ago and my brother, who is named the sole beneficiary (the biological son) was like 10 and my mom (who was devoiced from him now) is named executrix. This whole situation is a mess. My father left my brother a large sum of cash addressed to him in envelopes. Fine that is his. Now there is a bit of funds in the account and a pension cheque that is being paid out to my brother. My mother signed her portion of the pension over to my brother explaining that he was to share half that portion with me. There is also some monies left in the account. Now he is refusing to give me any amount. I did not have a great relationship with my father as he was abusive to me and we both chose not to have a relationship with each other. He is still my father though and I feel he meant to leave me funds too. All a very unfair situation. Do I have a chance at contesting the will, and as an unnamed beneficiary am I even entitled to anything?
    Thank you for your help.

    ReplyDelete
  57. Hello
    My wife's mom passed away and she had a will done up putting 2 sisters in charge as Executors in 2006 and in 2008 she put the 2 Executors and herself owning the Condo
    The will states to divide the residue into 6 equal shares to each of the said childern

    Okay the 2 executors think that because there names were added to Condo and Mom passed away that they now own the condo when the will clearly states all childern to divide equally

    Thanks for your help

    ReplyDelete

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