If your spouse dies, leaves you nothing and gives it all to his kids, should you contest the will?

If your spouse dies and leaves you nothing and leaves everything to his/her kids from a previous marriage, should you contest the will? What if you're unwell and can't work? This is a question I hear frequently from many readers, with a thousand different fact situations. One reader put the question very succinctly, and I thought many of you would be interested in reading the answer. The question and my reply are as follows:

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

On the face of it, I would think your mother-in-law is a good candidate for a claim against her husband's estate. As a general rule, a person cannot leave his or her spouse out of their will completely, but the answer is not that simple.

A person CAN leave his/her spouse out of their will if:
a) the two of them signed a pre-nuptial agreement that specifically stated that each would not leave their estates to each other. Pre-nuptial agreements are not always iron-clad in these situations, but they are a good starting point.
OR
b) the person gave assets to the spouse outside of the will, such as a life insurance policy, RRSP, or joint property that adequately provide for the spouse. Again, it's not iron-clad, but it's about as strong a case as the person could have.
OR
c) the spouse left behind is independently wealthy and doesn't require anything from the deceased spouse's estate.

It appears from your question that none of these circumstances apply to your mother-in-law, and therefore it's probably a good idea for her to make a claim against the estate. This is not quite the same as contesting the will, because she wouldn't be trying to invalidate the whole thing; she would just be trying to get a share of the estate for herself before it's divided among the stepchildren. This type of claim is called "dependent's relief" and exists in every province and territory of Canada. It's done pretty frequently and most experienced estate lawyers have dealt with them numerous times.

It's possible for a spouse to get some of the estate, or all of it. The judge hearing the case would decide what is appropriate based on a number of factors. Some of those factors are:
- the length of the marriage.
- the value of the estate - in other words, how much is available to go around.
- the financial needs of the spouse who is claiming - this would include, for example, the fact that your mother-in-law is unwell, which probably means that she needs care and/or medications, and cannot earn a living.
- any competing claims - in other words, there may be other dependents who are trying to get a larger share of the estate, such as any of the stepchildren who are still minors, or who are disabled.

As a suggestion, your mother-in-law could hire a lawyer to write to the executor and advise that your mother-in-law is going to make a "dependent's relief" claim against the estate. If her case is as strong as it appears to be, the estate lawyer may suggest to the executor that he make a settlement offer. This would end up being cheaper and easier and quicker for the estate than going to court to fight it out. These days, beneficiaries are getting pretty sick of seeing their inheritance eaten up by court costs, and they just might be ok with settling it without a court battle.

It's not a good idea to wait too long. The executor should wait six months after probate before distributing the estate (because of your mother-in-law's right to claim) but it's better to get moving quickly to ensure estate assets don't disappear.