Challenging a Will: What are the grounds for contesting a Will in Canada?

I was told that if I don’t create a Will through a lawyer, somebody will end up challenging the Will. Is that true?

This is one of the most common misconceptions we hear related to preparing one’s own Will. If you prepare a Will through a lawyer’s office for $600 it won’t be challenged, but it you write a Will yourself, or through a service like LegalWills.ca it is bound to be contested. The reality is that any Will can be contested, but challenging a Will can only be successful under one of eight conditions.

 

The last of these is a recent addition to our list after judgements coming out of British Columbia, and then just last week, a judgement from the Ontario courts which has opened the door to a whole new class of people who could be challenging a Will.

1. Challenging a Will because it was not executed correctly

This is the category of challenge most closely associated with preparing one’s own Will. The document must be signed in the presence of two witnesses who have nothing to gain from the contents of the Will. The most obvious disqualified witness is a beneficiary, but the spouse of a beneficiary is also an unacceptable witness. Many people think that a witness must be a lawyer, a notary or a person of professional standing, but in fact, any disinterested adult can witness the signing; friends, neighbours and co-workers are perfectly fine to serve as witnesses to the signing. But all three people must be present in the room together, there must be a declaration that the Will is being signed, and then each person must sign in each other’s presence. Having said that, there was a recent case in Australia where the witnesses were beneficiaries and signed the document on a different day to the testator, and the Will was still accepted as a valid Will – we wouldn’t recommend testing this though. As long as a Will is signed in the presence of two adults who have nothing to gain from the contents of the Will, nobody can be challenging a Will based on improper execution.

2. Challenging a Will because of a mistake

This is the most likely cause for a challenge to a do-it-yourself blank form Will kit. There was extensive coverage last year of a senior in Florida who attempted to list all of her assets in the Will and then leave these items to her brother. Unfortunately, she didn’t realize that a Will needs a residual clause to cover everything in the estate that has not explicitly been listed. In fact, at LegalWills.ca we discourage people from trying to list their assets in their Will for two reasons, firstly, your Will is going to be a public document once it goes through probate, and secondly, you don’t know when the Will is going to come into effect – next week, or fifty years from now, and you don’t want to have to update your Will every time an asset is changed. Most jurisdictions now have laws in place that try to interpret the true intentions of the testator, so we are likely so see fewer challenges to a Will based on an obvious mistake, like the mis-spelling of a name for example. The service at LegalWills.ca also structures the service so that obvious mistakes cannot be made. But it is a good idea to read through your Will to make sure that there is nothing ambiguous and all scenarios have been covered.

3. Challenging a Will on the basis of fraud

This covers the variety of situations where the Will is not genuine. A signature could have been forged, pages swapped out or removed, white-out and photocopies used. It also covers situations where the testator may have updated their Will based on wrong information that they received. Challenging a Will because of fraud can be successful if there is any evidence that somebody associated with the Will has acted dishonestly.

4. Challenging a Will based on capacity

This is one of the most common reasons for challenging a Will, as people often delay writing their Will until they are in their senior years. We always remind people that Wills are to be written when you are fit and healthy, and updated throughout your life. Leaving the writing of your Will until you think you are close to death is opening your estate up to a challenge. Age alone is not a factor, but mental capacity can often be associated with age and updating the Will in your nineties will open the door to somebody challenging a Will. Capacity to prepare your Will means that you understand that you have indeed prepared your Will, you understand the appointments within the Will, and the distribution of your property. You must understand the implications of what you have written and signed.

5. Challenging a Will based on unusual family circumstances

We’ve included this one because many celebrity Will challenges fall into this category. For example, James Brown’s Will is being challenged because it’s unclear as to whether and when he got married.

 

There are countless examples of children being disowned or genuinely unknown to the testator. Gary Coleman from the T.V. show Different Strokes was also married,  secretly divorced but continued to live with his estranged spouse in a common law relationship. Situations like this will almost always lead to somebody challenging a Will.

6. Challenging a Will based on undue influence

Undue influence goes beyond simply standing over the testator and making them sign something that they are not comfortable signing. It can extend to more insidious influences happening over a period of time. This case determined that although the 81 year old testator had mental capacity, one daughter managed to convince the testator to change her Will over the course of a year so that her final Will was a complete shift in intentions from all of her previous Wills. The judgement made this distinction “One may request, importune, or entreat another to create a favorable dispositive instrument, but unless the importunities or entreaties are shown to be so excessive as to subver the will of the maker, they will not taint the validity of the instrument.” In other words, trying to persuade somebody to change their Will does not alone mean that undue influence was exerted, but if the persuasion is excessive, it may result in somebody challenging a Will successfully.

7. Dependents challenging a Will

There is less fuzziness in the requirement that dependents must be taken care of within your Will. You cannot disinherit your spouse, minor children, or others who can demonstrate a dependency on you. The amount that must be left to dependents varies from Province to Province, but in summary, if you are planning to disinherit your spouse, your estate should probably expect to see a dependent challenging a Will.

A judgement in 2010 that overturned a BC Will disinheriting a man’s daughters in favour of his only son declared that “The provisions of this Will were not those of a judicious testator acting in accordance with societies’ reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards”.

8. Challenging a Will because something in the Will is not legal

A recent judgement in Ontario has changed the law. A man disinherited one of his daughters, and although there was no mention of it in the Will, it was assumed that the disinheritance was because the daughter had a child of a white man (the family were black). The judge overturned the Will because she felt is violated public policy. The judgement has confused most of the legal profession,

“I actually think it’s astounding,” said Western University law professor Adam Parachin. “This decision has no basis in established law and that’s not hyperbole.I think it is an absolutely stunning development in estate law,”

“Testamentary freedom” — or the right to dispose of your property as you see fit — is strongly enshrined in our law, he explained. There was no legal requirement for the 71-year-old father to gift anything to his adult daughter and his motivation for not doing so shouldn’t be any concern of the court, he said.

The law says the provisions of a will must be upheld unless they violate public policy. But it is not always clear on where that line is drawn. Challenging a Will that includes a bequest to a terrorist organization is probably going to be successful, but there is a very fuzzy grey zone.

In 2010, a Nova Scotian judge overturned the Will of a church goer who wished his house sold only to an Anglican or Presbyterian after he died. The judge determined that the Will violated the Human Rights Act that prohibits discrimination on the basis of religion in the purchase or sale of property.

How can you avoid somebody challenging a Will

Writing your Will through a service like LegalWills.ca does not automatically mean that your Will is more likely to face a challenge. You must of course sign the document in the presence of two independent witnesses, not a beneficiary, nor the spouse of a beneficiary. Make sure that you prepare your Will at an age where your capacity cannot be questioned, do not wait until you think you are about to die before you prepare your Will.

If you are planning to disinherit dependents, or if you have a strange family situation, or you want to do something controversial within your Will, then we would recommend that you seek legal advice. But even with legal advice, your Will can probably still be successfully challenged under these cicumstances.

Tim Hewson

President and CEO at Canadian Legal Wills
Tim Hewson is one of the founders of LegalWills.ca.

He has over 19 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.

Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
Anonymous

146 thoughts on “Challenging a Will: What are the grounds for contesting a Will in Canada?

  1. Allen P. Allen P. says:

    Four years ago my dad gave all 4 of us, his adult children, copies of his will, telling me that he expected his house be sold, that he has a couple of small accounts, a small insurance policy, and that he wants everything to be divided equally, including from the sale of the house. He said he made a will so there’s no arguments afterwards, and he’s named me and my sister (the only two that live in Ontario) as the trustees. He’s 90 years old now.

    I’m confused about these clauses in my dad’s will. First it names my sister as the Estate Trustee, and then if anything happens to her or if she dies or is unable or quits, it names me as the Estate Trustee. But then this weird sentence:
    “References to ‘my trustees’ in this my Will or in any codicil shall include each Estate Trustee of my Will, my estate or any portion thereof who may be acting as such from time to time whether original or substituted and whether one or more”.

    The entire will throughout uses only the plural ‘trustees’ including where there’s decision making, selling, distribution, allocation, etc
    e.g. “To sell, call in, and convert into money such part of my estate and upon such terms as my Trustees see fit”

    So does this mean that we both have say and control over these things? My concern is especially the the part “…as my Trustees see fit” which I think grants absolute discretion with no fiduciary responsibilities to other beneficiaries including me. My fear is she is planning to sell the property at significantly below market value, and if I have no say, and she has sole absolute discretion she can do it without even informing me or the beneficiaries.

    I think this would even allow her to never sell it and let one of her kids move in, would it not? Especially with the final section that states “My Trustees may make any division, distribution or allocation of the asstes in the residue of my estate in specie and at such valuations as my Trustees in the exercise of an absolute discretion consider appropriate”.

    I’m hoping that we both have equal powers in the decision making.

    Thanks,
    Allan P.
    Newmarket, Ontario

    • Canadian Legal Wills Canadian Legal Wills says:

      Thank you for the comment Allan. We cannot say for sure, but if the Will says what you have described “First it names my sister as the Estate Trustee, and then if anything happens to her or if she dies or is unable or quits, it names me as the Estate Trustee”. Then no, you do not have equal say in the decision making. In fact, you only have any influence if the first choice Executor is unable or unwilling to serve.

  2. Lee Lee says:

    I am not a greedy person. I was raised by my grandparents under “legal” judgement and they were handsomely paid to raise me and my two sisters. Unfortunately, my sisters and I never saw a penny, and during our childhood we were verbally abused, at times physically abused. We performed many house chores and we were not allowed to have friends, or a normal childhood. My grandparents had already four of their own children but three of them being mostly adults except for one, and that was my aunt who is only seven years older than myself. Let’s call her “Rina”, my aunt.
    My aunt was like the one appointed and in charge to constantly order us to clean the house. My mother had no respect from her parents and we were treated the same way. We have witnesses that when the government check would arrive for our needs, my grandmother would take our money and give it to her own daughter.
    Later on during our early adult life, my grandfather decided he wanted to make a will (testament) and leave his half of the house to me and my sisters because he said we had nothing, which is true. My grandfather was tired of seeing his wife using money to benefit only her own daughter and he would hear telephone conversations that when the time comes, she would leave everything only to ONE daughter, (Rina) who never lifted a finger to do much but gave orders. (no joke). Her daughter “Rina” always had help from everyone. Her brother, her ex-husband, and even her new husband. We all grew up in the same two bedroom apartment. One day is Rina and her mother (granny) ransacked the house looking for my grandfather’s will. They succeeded in finding his “private” will. When they did, my grandmother called my sisters and I “serpents” saying he is leaving us his money. By that time, we were not living with our grandparents. When they found the will, they accused us of so many things and we weren’t even aware my grandfather made a will. He had made one and had three copies for me and my sisters each. We were suprised, but had been falsely accused of being sneaky by the SNEAKY ONES THEMSELVES!
    Upon discovering my grandfather’s will, my aunt and grandmother played on his “medical” history of depression. They placed him in a psychiatric ward purposely to have him change the will. Rina’s new husband even got involved and paid his filthy cousin lawyer to have my grandfather change the will. My aunt and her mother told him they would take him out of the psychiatric ward if he AGREED TO CHANGE THE WILL! All of this was done so crudely, and with such maliciousness that I could not even begin to tell you the outcome! OUTCOME = IN THE END, RINA GOT EVERYTHING AND WE RECEIVED NOTHING! WE WERE LEFT BROKE, AND MONIES TAKEN FROM THE HOUSE WHERE WE WERE SUPPOSED TO RECEIVE, WERE USED AS A DOWNPAYMENT TO PURCHASE A MORE MODERN AND BIGGER HOUSE. RINA LIVES IN THE LAP OF LUXURY WITH HER OWN TWO WICKED GREEDY PIG DAUGHTERS, AND MY SISTERS AND I ARE LEFT STRUGGLING WITH NOTHING TO OUR NAMES. THE GRANDPARENTS WERE PAID VERY WELL FOR HAVING US THERE, AND BACK THEN MY GRANDFATHER WAS THE ONLY ONE WORKING. SO BASICALLY WE WERE USED, ABUSED, AND THROWN OUT IN THE END. ISN’T IT AMAZING TO SEE OTHERS GET AHEAD IN SUCH A DISHONEST AND SLEAZEBALL FASHION? I HAD GONE TO SEE MY SISTER’S FORMER LAWYER AND HE CLAIMED WE COULDN’T DO ANYTHING BECAUSE THE ORIGINAL HOUSE HAD BEEN SOLD. REALLY? SO NOW WHEN RINA DECIDES TO SELL HER HOUSE, IT IS WORTH HALF A MILLION DOLLARS! DO YOU THINK MY SISTERS AND I WILL SEE ANYTHING OUT OF THAT? OF COURSE NOT, BUT OUR PORTION OF MY GRANDFATHER’S MONEY THAT BELONGED TO US IS IN THAT HOUSE! WOULD ANY OF YOU HAVE ANY GOOD GRACES TO DIRECT ME INTO GETTING SOME KIND OF HELP? I HAD TRIED TO LET GO ABOUT ALL OF THIS, BUT IT IS JUST KILLING ME HOW THEY MADE MONEY FROM US AND LIVING IT UP WHILE WE STRUGGLE? DO ANY OF YOU SEE THIS AS BEING UNFAIR AND JUST DOWNRIGHT DISGUSTING? I WOULD ALSO LIKE TO MENTION THAT IT WAS NONE OF RINA’S HUSBAND’S BUSINESS TO GET INVOLVED IN CHANGING THE WILL AS HE WAS ALREADY WEALTHY AND ACTS LIKE A BIG SHOT. WHEN THE WILL WAS CHANGED, MY GRANDFATHER CALLED AND APOLOGIZED SAYING I AM SO SORRY I HAD TO DO THIS BUT THEY LEFT ME NO OTHER CHOICE AND HE WAS IN TEARS.
    WHERE IS MY JUSTICE???

    Thank you,

    Lee

  3. Dan Dan says:

    My father passed away years ago naming one of my siblings as executer there was no reading of will and I assume everything was left to my mother. Another sibling has said to mother the executer was too far away to make split decisions in a time of need so she had then changed executer to the closer sibling by 35 min.And now we feel proper procedures are not being taken. It’s sad especially when biggest concern of parent is that we all do not become a dysfunctional family.

    • Dan Dan says:

      What is best place to start to ensure this is done properly and fairly to all siblings as I hate to see family go separate ways. A lot of money seemed to disappear according to executer not much funds left and several property sales were done. Jewelry should it not be appraised and given out with all siblings approval instead of being spit up between executers. Without other beneficiaries knowing?

      • Canadian Legal Wills Canadian Legal Wills says:

        Hi Dan, the Executor is required to file a full estate appraisal with CRA. They should also provide reports to the beneficiaries. They cannot simply give jewelry away; Canada Revenue Agency will want to know about it. You would be able to ask the Executor for interim and final reports on the value of the estate and the value of the distributions to the beneficiaries.

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Dan, sorry to hear this, it happens a lot. If you really feel that the Executor is not doing their job properly, you can get them removed, but it’s going to cause a lot of acrimony in the family. You really don’t want to be initiating legal action against a sibling unless you really have to. The only thing I can suggest is that you try to work with the Executor and ask them if there’s anything you can do to help. But it’s a sensitive issue.

  4. Christine Christine says:

    My boyfriends mother died before her parents. Grandma changed the will to not include her deceased daughter. Grandpa died years later intestate. Does my boyfriend still represent his mother in the estate? My boyfriend was 19 when mom passed and 21 when his grandma passed. He was 33 when his grandpa died. When his grandma died he lived in his grandparents house rent free and they paid a lot of the bills and took care of him for the most part even though he was technically an adult from the time he was 19 when mom died.

    They had one other child that was living until last week. His kids said my boyfriend is entitled to nothing because grandma died after his mom and grandma left everything to her husband.

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Christine, thanks for the comment. This is complicated. I am assuming that the grandpa was also the biological parent of your boyfriend’s mother. But the grandpa died without a Will, so it also depends on whether your boyfriend’s mother had siblings. It also depends on how long ago your grandpa died. We will email you directly and give you the contact details of somebody who may be able to help.

      • Christine Christine says:

        His mom died intestate in 2001. His grandmother died with a will that left everything to her husband in 2003. His grandpa died intestate in 2015.

        There was one other sibling to his mom and his died last week. His kids (my boyfriends cousins) say my boyfriend has no entitlement

      • Lucienne Lucienne says:

        My husband has been in a mental state hospital since 2011 we have a joint will now he opened legally for separation but he is still residing inmental hospital can he change the will since we are still married with 2 children .thanks

  5. Bonnie Racine Bonnie Racine says:

    I had POA in Ontario for father who passed away in February 2018 and who had lived in long term care facility in Quebec. Will is probated and there are 4 children listed to receive a small financial inheritance each of about 4,000.00. The eldest sibling is estranged from family and has not seen or spoken to anyone for over 40 years. I do not know nor does anyone else know where he is. Would appreciate knowing how I am to proceed with his portion of the Will. Thanks.

    • legalwills legalwills says:

      Hi Bonnie, thank you for the message. The PoA really has nothing to do with the Will. The moment your father died, the PoA became void. It does nothing for somebody who has passed away. The Executor of the Will now steps in, and the Executor has the responsibility to distribute the estate to the beneficiaries. They have to make a good effort to find all of the beneficiaries. Traditionally, this would include placing an ad in a newspaper (although this seems a little anachronistic now, and a social media campaign would probably be more effective). If they cannot be found after a period of time, there are a few options; 1. hold some money in reserve 2. distribute the money to the remaining beneficiaries, but obtain indemnities from each of them confirming that should the missing beneficiary ever come forward you will (in theory) be able to recoup the money from them 3. Distribute the Estate and take out an insurance policy, which will pay out if the missing beneficiary is traced (which probably isn’t worth it for $4,000). You may want to speak to an estate lawyer (in Quebec) to see if there is any Provincially specific approaches. We do not cover Quebec. Good luck.

  6. limadelta limadelta says:

    My adoptive mother has just died. We were estranged. She was an evil woman, and I am sure that if there is a hell, she is there. My brother was likely involved in everything related to the will as he is a lawyer. When he dies, if there is a hell, that is likely where he will go as well. My only question is whether adult children can still be completely disinherited. The estate is likely worth millions, and you may consider me to be selfish, but I am thinking of contesting for the sake of the future of my own offspring. I am not desperately poor, but I want some security if I can get it. Advice please? Many many thanks in advance

      • legalwills legalwills says:

        Thank you for your question. In Ontario, there is generally no legal requirement to include adult children in your estate (in BC, this seems to be different with many adult children making successful claims against an estate). The only way you could challenge the Will is on the basis that your mother was not fully competent when she wrote her Will, or that she was unduly influenced by your brother. If you suspect that either of these may be factors, then we would recommend that you find an estate planning lawyer who can represent you.

  7. Angela Angela says:

    My father passed away years ago, well beyond the 2-year limitation in Ontario. I am wondering if there are exceptions to this time limit. I think I was a beneficiary – but I don’t actually know if I was. I don’t get along with my siblings and so, I wasn’t provided with any actual information about the will. I tried to find out more from an extended member of the family – but wasn’t able to get any details other than I was likely a beneficiary (plus the will wasn’t probated). I eventually gave up and let this go – but assuming I was a beneficiary and one of my siblings (as executor) did not execute the portion of the will that pertained to me, is there anything I can do about it?

    • Angela Angela says:

      The situation has now evolved. The youngest brother confirmed that I was a beneficiary in my father’s will, my oldest brother was the executor (who had lied to him that I had been contacted re: the will) – and also that it was my mother that refused to allow me my inheritance. This last part was basically confirmed by sister, who wrote that my father’s will was not executed while my mother was alive. (What?!?!) Plus, after I demanded my inheritance from my siblings, the oldest brother said I needed to sign a ‘consent affidavit’ to execute the will. This is all very convoluted and sounds incredibly fishy to me. I would appreciate any advice that could bring some clarity as to what I can do.

      • legalwills legalwills says:

        Hi Angela, thank you for the update. Honestly, we can only advise you to seek representation from an estate planning lawyer. We cannot adequately advise you on this forum. Our feeling is that lawyers often over charge for their Will writing services, but when you are involved in a situation like this, lawyers are actually good value for money. You may be spending a few hundreds dollars, but a significant inheritance may be at stake, and you really need representation from somebody who knows your rights under the law. Good luck.

  8. Beth Beth says:

    My biological Grandfather just passed away. Years ago he gave his 2 children (my mother) up for adoption. He was estranged from his own Mother (my great-grandmother) until she got sick and he took control of her affairs. She had a will. He destroyed it and claimed there was no living blood relatives and claimed her entire estate disregarding all of her wishes. Even though her grandkids were given up for adoption she remained in their lives and mine and we we all named in her original will. His current wife will now claim all of his estate. My question to you is ..do blood relatives in this situation have any legal rights to make a claim against the estate or challenge a will if there is one?

    • legalwills legalwills says:

      Hi Beth, I am sorry to read of this situation. There is a lot to discuss here. If your great grandmother died, and there was no record of a Will, then it her estate would go to her son (your grandfather). I didn’t quite understand your grandfather’s claim that there was no living blood relative – he would have been a living blood relative. If you do not have a copy of your great grandmother’s Will, and none was presented, then the estate would be treated as if there was no Will, and the estate would go to your grandfather. Now, if your grandfather has now died, the destination of his estate would depend on whether he had a Will. If he didn’t then depending on your Province, some would go to his wife, and some may go to his children. If he did have a Will, then everything would go according to the instructions in his Will. He would not have any legal obligation to include his grandchildren in his Will.

      • Beth Beth says:

        My biological Grandfather just passed away. Years ago he gave his 2 children (my mother) up for adoption. He was estranged from his own Mother (my great-grandmother) until she got sick and he took control of her affairs. She had a will. He destroyed it and claimed there was no living blood relatives and claimed her entire estate disregarding all of her wishes. Even though her grandkids were given up for adoption she remained in their lives and mine and we we all named in her original will. His current wife will now claim all of his estate. My question to you is ..do blood relatives in this situation have any legal rights to make a claim against the estate or challenge a will if there is one?

        Thank you so much for your reply. This has been very helpful! Yes he was a living blood relative but he wanted to be the ONLY living blood relative so he could claim the entire estate which was substantial. My great grandmother had a will but he had his attorney write his own version once he had control of her. She had a stoke and could not speak.
        My biggest question would be…Do his biological children potentially have legal rights to a portion of estate and/or to challenge his will (if there is one) if he gave them up for adoption or if they were born out of wedlock. (He had several outside of marriage as well)
        Sorry for all the questions. It’s a very complicated family history.

      • Beth Beth says:

        Thank you so much for your reply. This has been very helpful! Yes he was a living blood relative but he wanted to be the ONLY living blood relative so he could claim the entire estate which was substantial. My great grandmother had a will but he had his attorney write his own version once he had control of her. She had a stoke and could not speak.
        My biggest question would be…Do his biological children potentially have legal rights to a portion of estate and/or to challenge his will (if there is one) if he gave them up for adoption or if they were born out of wedlock. (He had several outside of marriage as well)
        Sorry for all the questions. It’s a very complicated family history.

        • legalwills legalwills says:

          Hi Beth, thank you for the clarification. You could definitely challenge a Will that was written for somebody who had a stroke and no longer was aware of what they were doing. But this is your great grandmother, so you would not benefit even if the Will was thrown out (and it would have to be challenged fairly soon after she died). I’m not sure what Province you are in, but unless there was something untoward going on at the signing of the Will, most Provinces do not require anybody to leave anything in their Will to their adult children. You should probably seek legal advice for your specific situation.

          • Beth Beth says:

            Thank-you for your time and clarification. The untowarding happened when my Great-Grandmother died almost 20 yrs ago now and my Grandfather took control of everything. I was too young to understand at the time and my mother didn’t have the wear with all to challenge as she had been “given away” so to speak. Her adoptive Family was all she knew. This happened in Ontario..not sure if that changes anything. I feel my Great-Grandmother would want this fixed if there is a way. Not for my sake but for those who have wronged through generations. Thank-you again for all your help!! If Laws in Ontario would support them in contesting I will advise them to seek Council.

  9. My father-in-law has recently informed me that he has changed his Will and has named his daughter as sole beneficiary. My mother died a couple of years ago and she had told me that all assets were to be divided between his children (2 from a previous marriage) and myself (only child, again from a previous marriage), they share 50% and I get 50%. We made a transaction recently where he helped me financially purchase a lot of land, at that time he signed a piece of paper indicating that the amount of money was to be deducted from my portion of the estate when he passes. He is now saying that he had indicated the amount of money, if accepted, would be my inheritance not a portion of.
    He has apparently changed his mind after signing the agreement.
    Most of the monies he currently has came from my mother and he is now going against her wishes.
    On these grounds, would I have a chance to contest his Will?

    • legalwills legalwills says:

      Hi Kate, probably not. There is no legal requirement for anybody to include their daughter-in-law as a beneficiary in their Will. Even though much of the estate came from your mother, it passed to him, and so he can distribute it however he wishes in his Will. This is a very common mistake for blended family situations – your mother should have created a lifetime interest trust allowing your father to live off the proceeds of the estate, but making sure the assets when to you on the death of your father. If she didn’t do this, then the assets became your fathers. And they would be distributed according to his Will. Unless he has been put under pressure to sign something he doesn’t want to sign, or unless he doesn’t have the mental capacity to update his Will, then based on what you have said, it would be a difficult Will to challenge. Even if you don’t think it’s fair. However. We are not giving you legal advice here, and if you have doubts, we would recommend that you speak to an estate planning lawyer who would be able to give you a legal opinion. I would however recommend that you wait until the Will comes into effect (after your father-in-law has died). You cannot challenge a Will that has not come into effect while the person is still alive. And you don’t really know the content of the Will until after he has died.

  10. Ann Ann says:

    My mother died 24 years ago. My brother and I were executors. We have signed releases from all beneficiaries. My mother owned 2 empty cemetery plots which were transferred into three of five siblings names, the remaining two siblings lived out of town – one of them across the country. Her intention was to use them as needed for any family member. Now, 23 years after signing a release the sibling who lives across the country has decided to contest the deeds to the cemetery plots. We have offered him the right of internment in them but are reluctant to add his name to the deed on the advice of the people at the cemetery as they have said multiple names complicate matters. Does his signed release and the passage of 23 years make his actions frivolous? Does he have a leg to stand on? He is not a reasonable person and has often been involved in litigation with neighbours and his ex- wife.

    • legalwills legalwills says:

      Hi Ann, unfortunately we cannot give you legal advice. It is really difficult to tell based on this information, but generally speaking if the sibling signed a release 23 years ago and has now had a change of heart, I’m not sure they would have much success in with a legal challenge.

  11. Heather Heather says:

    Hi. My mother in law just passed away. In the last year when she has been very sick with cancer and somewhat incapacitated her will has been changed 3 times by her son who is benefiting the most from her estate. Prior to this last year, her previous will had been unchanged for several year. Her news wills don’t reflect the wishes in her previous wills. She has two children and two step children, all adults now. She has cut her two step children out of her will. Her son who has changed the will twice this year also has moved her from Quebec to Ontario and become the POA durong this last year. Can we challenge him and how he spent her money over the last year, if so how? Can we challenge the will due to the fact that she was unable in her health and she disinherited the two children she raised (her stepchildren) who were beneficiaries of her husband’s estate had she predeceased him and also beneficiaries of her previous will? Do the lawyers consider her wills from Quebec as well? Thank you

    • legalwills legalwills says:

      Hi Heather. I am sorry to hear about your situation. Unfortunately, it is very common. Based on what you have said, yes, you have a good case for challenging the Will. But you will need legal advice from an estate lawyer. We would recommend that you move quickly, and contact an estate planning lawyer in your area. You may have to pay some money to do this, but the lawyer will quickly be able to explain whether you have a strong case for challenging the Will (and requesting accountability on the Power of Attorney), and also explain the net result of a challenge. I cannot say what the implications are for the move from Quebec to Ontario, but an estate lawyer would be able to help you here.

  12. Alex Alex says:

    Hi

    My grandmother (widowed) had 3 children. One of those children was my mother who predeceased her.

    My grandmother’s Will named her 2 surviving children as co-executors and beneficiaries of everything (per stirpes).

    Do I have a legitimate claim based on being the only child of my mom who again predeceased my grandmother? If yes, is there a time limit for me to act in Ontario)?

    Does it make a difference that I am not mentioned in the Will?

    Thanks

    Alex

    • legalwills legalwills says:

      Hi Alex. It really depends on what the Will says. It may have said that “I leave my estate to be divided equally between the children that survive me” in which case, you are out of luck. If the Will was written properly, then there would be an alternate plan for each child’s share, which would usually have their share pass to their own children. If the Will says one thing, it would be difficult to challenge this on the basis that you would rather it said the other thing. A grandchild does not have a right to inherit. You would need to read the Will and see how it was worded. Good luck.

      • Rob Leggett Rob Leggett says:

        Hi, my situation is very similar to the one above. My mother was quickly getting dementia, so I went online and got a very basic will done up for her. It said in it that everything she had was to be equally divided up between her children, but the part I missed on it, due to reading through it to quickly was that if any child predeceased her that had any children, their share was to go to them. Well in our case my mother had 4 children, of the 4 only 2 had children of their own, so to me this did not make it fair to all parties, due to the fact if one of the siblings that didn’t have any children passed first, then the 2 with children received more, but if one of the siblings with children passed first, then the 2 without any children received less. I know its my mistake for not reading it properly, because if I did, then I would have ruled out that line and had my mother initial it, making the will fair for all 4 of my mothers children. I guess this just proves the point that a will should be done up by someone with experience in wills. I now have my sisters (who predeceased my mother) daughter saying that I have to give her the share that her mother would of got or she will contest the will, do you think I have a chance of going to court and not giving her that share? All I wanted was for what my mother had left to be equally divided amongst her remaining living children.

        • Laura Lee Laura Lee says:

          Hello. I no longer speak to my sisters, they turned my nephews and nieces against me. Yet, if one of my sisters dies, I would want my nephews/nieces to get my sister’s share. That to me is the fair way in it all. 4 kids, 4 portions. You got yours already. Now the deceased sibling’s kids should get theirs. It sounds more fair to me to do it that way. End of story. Who cares about the politics. Care about fair.

  13. Jerry Kampitsis Jerry Kampitsis says:

    My father recently died and left me very little in comparison to my two living brothers and my stepmother. 19 years ago, my wife and I decided to adopt a little boy since my wife had extreme difficulties at carrying a child. My father’s arrogance and ignorance would not accept him as his grandson and, ever since then, my father slowly but surely disowned me and disinherited me. Things that were promised to me during my life were not delivered but instead shared between my two living brothers. My stepmother stands to inherit a $1.5 million home in Ontario and my two living brothers stand to inherit much more than I will. My father used deception and trickery to cheat me out of my birthrights.
    Do you believe I have a legal recourse and get what was rightfully promise to me?

    • legalwills legalwills says:

      Hi Jerry, I am sorry to hear this. It really depends on where you are living. In BC you may actually have a decent chance of making a claim, there was a famous case a couple of years ago where a child wasn’t treated fairly and the Will was overturned by a judge. In other Provinces it could be more challenging, but you should speak to a lawyer, explain your situation and get legal guidance. Good luck

  14. Shanley Shanley says:

    I am a survivor of sexual and emotional abuse at the hands of my father. Because of this, we have had an on/off relationship over the years. But for most of my life, I was very much there for my father.
    My father is gravely ill now and I have just learned that I am not included in his Will.

    Do I have grounds to contest the Will if I believe I was unjustly removed?

    Also, is it possible for a survivor of sexual or emotional abuse to sue the estate of the deceased abuser for punitive damages or costs of therapy? What if nothing has been proven in criminal or civil court prior to the abuser dying but the victim has evidence of the abuse?

    • legalwills legalwills says:

      Hi Shanley, I am very sorry to hear this, but I cannot really provide you with proper guidance on this blog forum. You could certainly seek legal advice, but it would seem that you would have more chance of receiving compensation from your father while he is a live than suing the estate once he has died. You should really speak to a lawyer, this is not an area of expertise for us.

  15. Peter Peter says:

    My mother passed away on May14, 2015. My mother and me jointly owned a property as joint tenants with survivorship. After her death, I found out that my sister used the POA to severance the joint tenancy two months before she passed away. The property now says my mother and me each of us owned 50%. I did not know my mother has a Will until September 2, 2015 because no one say she has a Will. As I have paid all the mortgages and 70% of the expenses of the house plus me and my mother have an agreement that I am the sole owner of the house, I found it is not fair to have half of the house goes to my mother’s estate and my sister is the sole beneficiary according to my mother’s last and only Will. I have submitted an Application of claim to challenge the validity of POA. I noticed that there is a limitation time on Will challenge. My question is do I need to summit a claim to challenge the validity of the Will now before the 2 years limitation time or my case does not apply to the limitation times?

    • legalwills legalwills says:

      Hi Peter, this may be one of the most complicated questions we’ve ever received on this blog post. Unfortunately, we cannot help you because there is just too much to look into, and we cannot give you legal advice. I have never been more certain to recommend that you seek legal advice. You need to look into the PoA, the change in ownership of the house (which alone is strange, I’m not sure how the ownership of the house could have been changed without you agreeing and signing), and the Will. You should find a local estate planning lawyer who can represent you and look into these things. But you must move quite quickly, I don’t know if there is a 2 year limit into challenging these documents.

  16. Elena Elena says:

    I am asking this question on behalf of my mother. My grandfather passed away in September 2016 and left his estate to be split equally by his four children: my mom, her sister and her two brothers. My mothers sister wants to contest the will on this basis: the house (which is now in my grandfathers name) was purchased in 1973 with a down payment partly paid by my moms sister. My grandfather paid the mortgage on the house from then on, utilities, hydro all property taxes until he died but because she paid part of the downpayment she is seeking to dispute the will and go after half the house as well as back payments of rent that was paid to my grandfather by tenants he rented out to. Do you think she will have any grounds to contest the will on this basis?

    • legalwills legalwills says:

      Hi Elena, we cannot give you legal advice, but I would think that unless your aunt has documentation showing that she is a part owner of the house, I’m not sure she can claim half of it. If your grandfather owned the house, then it is part of his estate to be divided according to his Will. Your aunt can certainly challenge the Will, and it will end up being a decision by the courts and a judge. I cannot guess what the judge would say, but I would be surprised if the judge ruled that your aunt owned half of the house, and if she doesn’t then your grandfather can do what he likes with it in his Will.

  17. Bridget Foley Bridget Foley says:

    My dad passed away a little over a month ago. My youngest brother was named as primary executor and I was named as secondary, should he refuse. Dad left his house and land, as well as some personal items to my youngest brother (executor), tools and personal items to my other brother, and his car and personal items to me. There is a loan still owing on dad’s car, as well as on the car he purchased for my youngest brother (registered & insured in dad’s name). my brother has refused to allow me to keep the car according to dad’s will, and plans to sell it to pay off his car. the bank wants their money and are willing to place a lien on the house till i pay off the car loan. my brother refuses to do this and insists that as executor, he can do as he sees fit. this does not seem right or legal. i don’t qualify to refinance the loan but can maintain payments if he allowed, as dad wished. i cannot afford a lawyer and so I don’t know what to do.

    • legalwills legalwills says:

      Hi Bridget, It’s amazing how many time we hear of siblings who seemed to get along fine for their whole lives until they had to sort out their parent’s estate, and then irreparable rifts appear in the family. This is a complicated question, but we can try to provide some general information. The Executor has a responsibility to carry out the instructions in the Will to the best of their ability. But most Wills do allow the Executor to sell individual items if it helps distribute the assets. Your brother can sell the car, but if the car was left to you, the proceeds of the sale would go to you (minus anything still owed to the bank). If the car was left to you, your brother cannot sell it to pay off his own car. Although it would be ideal if you could simply assume the payments on the car, it may be that the best you can get out of this is the money that comes in from the sale of the car, this is rightfully yours. Good luck.

  18. Tracey Zink Tracey Zink says:

    My Father passed away over a year ago and no one told me, I found a Memoriam in the paper posted by my mother just 2 weeks ago.
    My questions are.
    1) if my father left everything to my mother and she has a will leaving everything to my brother is there any way I can fight that? (she is still living)
    2) How do I find out who their estate lawyer is, or what is in the will if no one will speak to me?

    • legalwills legalwills says:

      Hi Tracey. The only way you could successfully challenge your mother’s Will is if she was pressured into signing it by your brother, or if she didn’t have the capacity to sign it (she didn’t know what she was doing). In BC, there have been some successful challenges made by adult children who have been left out of a Will, you may have a chance if you live in BC. You can’t really view your mother’s Will, because she hasn’t died yet. If your father’s Will was probated, they should have a copy in the local probate court where he died.

  19. Maureeb Maureeb says:

    I am named in my brother in laws will. He removed his daughter because they had problems. Can his daughter protest the will? What if my nephew doesn’t tell me I’ve been name in his father’s will.

    • legalwills legalwills says:

      Hi Maureen, I am assuming that your brother-in-law has now passed away and your nephew is now looking after the estate. He should inform each beneficiary that they are in the Will, and start to gather the assets. The Will should be probated, and if you ask for a copy of the Will, the Executor should give it to you. If your nephew is not letting you see the Will, then you should seek legal advice and have a lawyer write him a letter. If your brother-in-law’s daughter is an adult, then in most Canadian Provinces she has no rights to the estate. Her only challenge to the Will would be either if somebody influenced your brother-in-law to sign something he didn’t want to sign, or he didn’t have the mental capacity to prepare his Will.

    • legalwills legalwills says:

      Hi Elizabeth. In any situation where you want to challenge a Will, we would recommend that you seek legal advice and find an estate planning lawyer to help you. I’m not sure if you mean “hasn’t been probated yet” or “isn’t going through probate”. If it isn’t going through probate, it would suggest that the assets are all jointly held, and going to the surviving partner, which would make it a difficult Will to challenge. It’s difficult to say based on your description, but we would recommend that you get legal advice from a local estate planning lawyer. Best wishes.

  20. NIKKI NIKKI says:

    My husband and I moved our mobile home on his stepdad’s and mothers land about 7 or 8 years ago. We have taken over most of the the farming business a couple years ago which originally was mostly theirs, we made improvements to the land including well, sewer, tree, grass, new corral system, rebuilding fences adding new fences, adding on to shop, building new sheds, etc. just in general everything that has to do with the upkeep of the farm. The stepdad and mother had some years previous put my husbands name on their will or he wouldn’t develop the land etc. any further, so it was put on the will. Now my husband and I are going through a separation, he left our home 7 months ago which is still on their land. They are trying to get me off. Do I have any entitlement to this land? What should I be doing?

    • legalwills legalwills says:

      Hi Nikki, I am sorry to hear about your situation, but it doesn’t really seem like a Will question. You are situated on the land owned by your ex-husband’s parents, and now that you are going through a divorce, and he has moved out, his parents want you off their land. It’s not an area of expertise for us. We only really deal with Wills. You should seek legal advice because you are being ordered to move your mobile home off their land. I don’t really know what your legal rights are in this situation. You may be able to receive some free legal advice on this issue, but it’s unfortunately not something we can help you with. Good luck.

  21. Kym Chessall Kym Chessall says:

    When my dad died my mom had an old handwritten will from 1982 probated instead of the recent will which was drawn up at a lawyer’s office. The lawyer claims to have no record of his will but his previous lawyer does say there is a record of a will drawn up after 1982. Is there anything I can do to get a copy of his most recent will?

    • legalwills legalwills says:

      Hi Kym, this is always a difficult situation where you are certain that there is a more up-to-date Will but there is no record of it anywhere. Even if the Will was drawn up in a lawyer’s office, if it cannot be found, then it cannot be probated. You would just have to find the Will, but we cannot give you any useful advice on where to look. I’m sorry we cannot be of more help.

  22. Cindy Cindy says:

    Hi, my dad recently passed with no will so evrtything was passed on to my mom. Over a year ago my dad annouced to the family (cousins and aunts) that my mom had dementia. My brother (38) has never left home, never paid rent or helped with bills of any kind has a girlfriend that is pregnant. She is living there as well and they both work with good jobs. They broke up for a couple of months which coincides around the time of her getting pregnant. For months my mom kept telling me that the baby is not my brothers and disliked her immensely. When my dad passed my mom, I, my brother, his girlfriend and my cousin (a financial advisor) sat down and discussed the estate. She said my mom wanted me and my brother to get half of the estate each and we discussed the amount (which is what my dad has always wanted). After that was discussed I went home and a couple of months later my mom drew up a will all of a sudden changing her mind and leaving everything to my brother saying she wants the baby to have a home. They don’t help her in anyway and I just don’t understand any of it. Could I contest the will when the time comes or shoukd I judt cut my losses and tuck my tail between my legs?

    • legalwills legalwills says:

      Hi Cindy, sorry to hear of this situation. If your Mom prepared a new Will after being diagnosed with dementia, then you have a good case for challenging the Will. Bear in mind that it is possible for her to have lucid moments, and confused moments, so it’s not a given that your claim would be successful. If she changed the Will but was not fully aware of what she was doing, or she was put under undue influence to prepare something that wasn’t her true intention, then yes, you have a good case for challenging the Will.

  23. Lyne Lyne says:

    I have been common-law with my partner for 24 years. We have 3 children together and I have another child from a previous marriage who has lived with us for 19 years. My common-law partner has 2 children from a previous marriage. My questions to you are; can my husband’s ex-wife who he is divorced to and his 2 children from the previous marriage contest my common-law partner’s will if they feel they received nothing or less then myself and my children, if my daughter from a previous marriage receives less then her siblings can she contest my common-law’s will, if I receive equal or less then my children or his children can I contest his will?

    • legalwills legalwills says:

      Hi Lyne, this is a little confusing, because I think you referred to the same person as both your partner and husband, but I’m not sure it’s the same person or not. Your partner’s ex-wife has no claim on the estate if they are officially divorced. Generally in Canada you are not required to treat every child the same. There are countless reasons why you may want to give more to one child than another. A child cannot contest a Will just because they received half as much as another child.

  24. Noel Albert Noel Albert says:

    My dad recently passed away. My 2 sisters and 2 brothers are executors of the will. My brother and I who are not executors didn’t receive a notice yet of any indication if we are in the will. We don’t know if another will was done after the last one in 1992.I have a copy of my dad’s will done in 1992. My brother and I were in that will. Because my dad had 2 copies of this will I asked him if I could have a copy. I did this because my siblings and us at the time we’re not getting along and I felt I could not trust them as they put themselves as Power of attorneys for my dad.My questions to you are; How do we know if my brother and I are in the will, can I use the 1992 will to contest a new will if my brother and I are not in the will and can I probate this will, how much time do we have to contest the new will before my siblings can devide my dad’s assets? If by chance they divided assets before my dad passed away what can I do about this?Lastly, can we use assets from the will to pay for lawyer fees?

    • legalwills legalwills says:

      Hi Noel, The first thing I would recommend is that you seek the services of an estate planning lawyer. We cannot give you comprehensive legal advice on a blog comment board like this. I think you have a right to see the Will; you are the child of the deceased, you should be able to see the Will and there is no reason to keep the Will a secret from you. You can only contest a new Will if there was something untoward in the creation of that Will; your Dad didn’t know what he was doing, or he was unduly influenced. This is why you need the help of an estate planning lawyer. They will be able to find out if a new Will has been probated. In this case, it’s worth the fee of a few hundred dollars when there is potentially tens of thousands of dollars at stake.

  25. Elena Elena says:

    My husband has an adult son from his previous marriage. Can I provide in my will half of the sale value of our condominium unit (where we my husband and I currently lives & own) to my niece. If I die before my husband, and he sells the condo, can I put in my will that half of the sale price goes to my niece? Then, if my husband dies, can his son fight for ownership of the condo or is my niece’s half protected by my will?

    • legalwills legalwills says:

      Hi Elena, thanks for the comment. It all depends on the nature of your joint ownership of the Condo. If you own it as “tenants in common”, you can leave your half of the condo in your Will to another beneficiary. If you own it as “joint tenants”, the surviving partner automatically receives the other half of the condo. If you did own it as tenants in common, you can leave a “life interest” in your half of the condo to your husband, so he can live in it for the rest of his life, and then when he dies, it goes to your niece. You can set this up easily within our service at http://www.LegalWills.ca/MyWill.

  26. DIANE DIANE says:

    my uncle passed away making my cousin and I executors of the estate. his wife passed away before him. His first wife and him had 3 children, which my uncle never knew, the wife took off more than 50 years ago. the children never contacted him. The children are now complaining because our Uncle has left my and my cousins siblings more than he left them. He did acknowledge them not much but he did. Do they have any grounds to contest the will? This was his wishes and he was of sound mind when he did so. he did everything legal with and lawyer?

    • legalwills legalwills says:

      Hi Diane, if the children are now adults, and no longer dependants (the no longer rely on your uncle for financial support) then they would struggle to successfully challenge the Will. Ultimately, a judge in a court will decide if a challenge would be successful, but based on your description of the situation, they would not likely win a challenge. People do have a right to give their estate to people other than their adult children, and it looks like the lawyer who prepared the Will was careful to include the children, so they cannot claim they were inadvertently forgotten.

  27. Darla Smith Darla Smith says:

    Mother passed away recently. I am estranged from a couple of my siblings. Asked if they have any more recent wills than the one I have where I am a an executor and a beneficiary. One replied that I have no right to see the most recent will as I am not an executor or beneficiary and there is no money in the estate anyway. Strange because they recently sold her home. On doing a search it was uncovered that many years ago one of my siblings had Mom’s house transferred to their name alone. No money exchanged hands. I had a relationship with my Mother right until the end, cannot think of a reason she would have wanted to leave me out. What can I do about this? ( British Columbia )

    • legalwills legalwills says:

      Hi Darla, I think you have a right to see the Will, because you are in possession of a Will. You would need to know whether the Will that you have is still the official Last Will and Testament. Otherwise you can apply for probate with the Will that you have. If you explain to your sister that you are applying for probate with the Will in your possession, then it would be in their best interests to show you the new Will.

  28. Emily Emily says:

    My brother passed away from cancer. My parents home was lefts to us four siblings. My brother, and sister signed off on my parents home. I told my brother that I would sign off only if he followed my parents wishes and never give the house to the church if he passed. He was a priest. My parents were afraid the church would knock down the home. My brother passed April 2015. The will came, and he left the home to the church. I was devastated that I believed him. I found out he rewrote his will 1 week before he died with cancer in his brain. Come to find out my sister got him to leave my parents possessions that were stored in his home, and most of his possessions to her and her kids. My brother and I were left nothing, my kids, nothing, and I am the one closest to Mt brother. The last week of his life he was in bad shape. Should I contest the will. I would like to get our family home back.

    • legalwills legalwills says:

      Hi Emily, you should definitely get legal advice on this. Often a Will that is written one week before a person dies can be challenged on the basis that the testator (person who wrote the Will) did not have the mental capacity to prepare their Will. You should speak to an estate planning lawyer in your town and ask them for advice. It is worth paying for advice in this situation because a lot of money could be at stake. Good luck.

  29. Deb Kyle Deb Kyle says:

    I am 57 years old, single and healthy in every way. I live in Nova Scotia and have been divorced for 12 years. I have made a will using your service leaving everything to the adult daughter of that marriage. Would my ex-husband be able to contest my will?

    • legalwills legalwills says:

      Hi Deb. If you have been legally divorced for 12 years and your ex husband is not a dependent, then there is no requirement to include him in your Will. He could certainly challenge your Will, but based on your explanation of your situation, I cannot see any reason why it would be a successful challenge.

  30. Bernice Bernice says:

    If my sister and I own a house together that our father purchased,and she passes, Would her husband be able to take her share as his Own? I have always lived in the house from day one. What are the rules in Canada on this please.

    • legalwills legalwills says:

      Hi Bernice. It depends how you and your sister own the house. If you own it as tenants-in-common, then her share would be part of her estate distributed according to her Will. If you own it as joint tenants, then you will receive her share of the house. It’s important to know how the property is jointly owned.

  31. Marie Marie says:

    My mom has passed a few years ago.We have just found out our dad has cancer.They have said he will only have a year or so and then it will take him.Together they had three children.Our one brother passed before our mother did.Leaving just us two kids. When my father passes he plans to leave the estate to me and my sibling. He had a will drawn up to stait this shortly after mom passed. He is worried that my sister-in-law. My deceased brother’s wife will try to contest it.She is now living common law with a new man and has been for sometime but she does have adult children with my brother.Do we need to worry? The will was drawn up by a lawyer. We are in Saskatchewan.Thanks

    • legalwills legalwills says:

      I would be very surprised if a widow of deceased adult child successfully challenged a Will if they were not a dependent. The adult children of your deceased brother have more chance, but even then, I can’t see why grandchildren could successfully challenge a Will that was correctly drafted. If I was you, I would make a quick call to the lawyer who drew up the Will and ask that lawyer if you should be worried.

  32. Kathleen woods Kathleen woods says:

    My mother died in 2010 she had made a will leaving her house to me and my brother the house has been in probate ever since I have just been informed my step father has won the house they were legally separated wen she died and he had been rehoused by the council. He has got the house illegally plz help me find out if I can still fight this plz

    • legalwills legalwills says:

      Hi Kathleen. You really need to get legal representation on this. Separation is a weird status in Canada, and separated spouses can still make a claim on an estate, particularly if they are still dependents. A local lawyer will be able to tell you if you have a chance of success overruling this challenge. However, you really should have been told that your stepfather was challenging the Will. The Executor should have kept you in the loop.

  33. Wayne Wayne says:

    My mother has indicated I will be left out of her will and all goes to my sister. My mother was verbally and physically abusive to me all my life but not to my sister..gerry favorite. Threatened me since I was young that she would give me nothing when she dies unless I saw things her way . Can I contest.

    • legalwills legalwills says:

      Hi Wayne, thanks for the comment. It actually depends on which Province you are in. Adult children who are no longer dependants do not have to be included in an estate, but in BC in particular, there have been many judgements in favour of adult children who have been disinherited. You can always challenge, and a judge will decide if the challenge has merit. I would talk to a local lawyer first though. If you’re in BC, you have a good chance of success, outside of BC, it would be tricky.

  34. L J Dujardin L J Dujardin says:

    My late husband passed away in December, 2011 and was diagnosed by medical doctors with a cognitive dysfunction or deficit. He signed new wills that were prepared without any notes in September, 2006 and left in a lawyer’s office referred to a will hold drawer and were signed in March, 2009 with the beneficiary present in the room when the wills were signed. This finally made it to trial in September, 2016 and the Judge disallowed any medical evidence or testimony and based the trial only witnesses’ hearsay from laypersons. These witnesses never came to visit or had any relationship with my late husband or myself, widow left out of will. I have retained new legal counsel and this is now in the Court of Appeal. The wills left me in a homeless position, no living allowance or any medical care. The Judge based the trial total on witness hearsay testimony and denied any medical expert testimony. Women are still be treated like we live in 1700 and have no matrimonial rights’. Disappointed in the Justice system and the Judgement put in place will leave me the widow in a bankruptcy position and this case took five (5) years to get to trial with substantial legal fees at my expense. This case also had several contempt of courts and the Judge’s total ignored the court orders in this trial. This Court Case needs to go public and other widows/widowers should get proper legal advise and not one lawyer retained gave me the widow proper legal advise, now this case is in the Court of Appeal. Judge’s and lawyer’s do not have to uphold the law. The Court Orders in my legal case were total ignored, with several contempt or court, and what is the purpose of Court Orders without any authority. Disappointed in our laws and Justice System my matrimonial rights’ were infringed and left me in financial destitute.

    • legalwills legalwills says:

      This sounds like an awful situation. In most Canadian Provinces it is actually very difficult to disinherit one’s spouse. A spouse usually has a claim on an estate, particularly if they have a dependency which it sounds like you have. It is really difficult to comment on a blog discussion board being that your case has been through the court system, but I can’t understand why a judge would not allow a widow to make a claim against her late husband’s estate, and in not allowing this, forcing the widow into bankruptcy. It’s terrible that you went through this, and wish that the courts could have been more helpful to you. Best wishes.

  35. Susan Prince Susan Prince says:

    My Aunt (not actually related but have known her since my birth) just passed away. Her husband has Alzeimers and is in a home (he has a daughter from his first marriage). My Aunt and him didn’t have any children. She has always told us that when she passes away she would like to leave her money to us and her only living sister. Her lawyer was her POA and his POA. She went into the hospital last Friday and they gave her a 50-50 chance of surviving from pneumonia. She called her lawyer on Monday and told him where she was and discussed a non issue, he never mentioned to her that she should maybe make slight changes to her will knowing were she was and her situation. She passed on Thursday and now we find out that because she passed first (which everyone thought he would go first) everything has been left to him and then when he passes, his daughter. We would like to contest the will (especially her living sister) on the basis that the lawyer knew her situation but didn’t discuss changing her will. She dislikes her husbands daughter and has said that she never wanted her money to go to her. Her lawyer is 85 years old and my brother has met with him.and feels he may not be completely competent. Do we have a possible case?

    • legalwills legalwills says:

      Hi Susan, I’m not sure you have a case to challenge a Will that was written when your aunt was fully competent and left everything to her husband. It sounds like a common instruction in a Will. You are challenging it based on the fact that she didn’t change it when she was “on her deathbed”. We cannot give you legal advice here on this blog discussion, but I think it would be a tough challenge. I would recommend that you speak to an estate planning lawyer and discuss all of the details to get a second opinion.

  36. Sanjay Pillay Sanjay Pillay says:

    Hi, Iam the eldest of the three children living in New Zealand. My mother bought a property to which I invested in and did lots of work around the house including landscape gardening.
    My brother is mentally ill and sleep and watches T.V all day long and my sister is married and lives in Australia. I am the one taking care of mum. Because she had a stroke some years ago, I am responsible for taking her shopping, to the doctors, giving her medications, helping her cook and driving her around.
    My question is can I claim more than my brother or sister in her will? Because her mental capacity has gone worse, is she entitled to change her will before she passes away? Is she entitled to get a beneficiary to witness the will?

    • legalwills legalwills says:

      Hi Sanjay, thank you for the question. This type of situation actually happens frequently whereby one child contributes more to the care of a parent than the other, and feels that this should be acknowledged in the Will. However, you ask “can I claim more than my brother or sister in her Will?”. That’s not really how it works. You don’t make a claim in a Will. The Will is written by your mother and reflects her wishes for the distribution of her estate. She may have a favourite child, she may wish to compensate one child more that the other, but ultimately this is her decision. She must however write the Will when she has the mental capacity to know what she is doing. So she cannot change her Will if she has lost that capacity. And in answer to your last question; no, a beneficiary cannot act as the witness to the signing because that would clearly lead to a suspicion that the beneficiary influenced her into writing something that didn’t truly reflect her wishes. Your best hope is that when your mother was competent, she felt that you cared for her more than your siblings did, and wanted to acknowledge this in her Will. Best wishes.

  37. Steven Snowball Steven Snowball says:

    I was wondering if you could help me with something. In 1998 my aunt passed away, her estate was split 3 ways between brothers as well as 2 life insurance policies to her significant other and one of her requests was the 3 brothers stay in contact with her significant other. The youngest brother ended up with a mental illness so he never bothered to stay in contact, the oldest brother never respected that request and moved on with his life, the middle brother stayed in contact, did small jobs around the house, visited, spoke on the phone and did small gestures and showed up every Christmas with a gift and care package and became good friends. Fast forward to 2016 the middle brother shows up 2 days before Christmas with a care package and gift to find out from a neighbor he has passed away in August and the house has been sold. Found out another neighbor that cuts his lawn and removes snow had become the trustee. He informed the middle brother that the significant others lawyer had passed away 4 years prior and that he had called a lawyer weeks before his death. The middle brother was also told there was no obituary and that the significant other did not want anyone notified of his death. He had no real family, and no children. The significant other was 92 years old and was diagnosed with Bone Cancer. The middle brother did call the new Lawyer and was basically told he was not family and he was not in the will and that was the end of it. The middle brother will be retrieving the will from the court house and going to be visiting the hospital to see if he can find out anymore information. The middle brother is devastated because he wasn’t contacted during the sickness or the death. He believes without a doubt that the significant other of his Aunt would have at least said Goodbye. Is there anything the middle brother can do? Does he have grounds to contest the will?

    • legalwills legalwills says:

      Hi Steven, if the Will was last updated weeks before his death at 92 years of age, the middle brother may perhaps have grounds to challenge the Will, but I’m not sure the net result would be in the middle brother’s favour. From what I can tell, the middle brother is a step-nephew of the significant other, and so even if the Will was invalidated, a step-nephew is generally not in line to receive anything. The only possible exception is that if the Will was invalidated and a previous Will was discovered that did leave everything to the middle brother. If I was the middle brother, I would still try to see a copy of the Will. I wouldn’t necessarily accept the word of the lawyer as final and the middle brother should still be allowed to see it. Failing that, the middle brother is correct in trying to access the Will from the court house. Once the middle brother sees the Will, he will be able to decide on the next steps (for example, if everything was left to the lawn cutting neighbour, there may be other grounds for a successful challenge). You should be aware though that time is of the essence, if too long a time passes, it becomes more difficult to challenge.

  38. My mum passed away, June 16, 2016 in Mexico, although, the will has been filled in the Judicial center of Edmonton Alberta.It was filed October 21, 2016, in which I, one of her two children, received a copy of, approx, 2 days later.
    We are a small family and we had flown to Mexico, to put my mum to rest on Oct13, 2016. The executor, is her neighbour in Mexico, however she is also from Alberta, and still has a Calgary address. She flew to Edmonton to have thewill stamped by the clerk of the court in Edmonton, as it is a Canadian will.
    My mother changed her will, January 6 2016, after one week exactly, of my step fathers death, on Dec 30 2015. She was 80 years old, & I know she was totally stressed out cuzshe told me, in a phone conversation, right after my step fathers horrible fight with Cancer, ended.
    In the will it states, that i am to tec receive 5% , my brother Gary is to receive 75%, and my step fathers children, are too receive 10% each. It was a slap in the face when i read this will. I know my Brother, Gary was given her house in Mexico, plus an additional $30,000, a few yrs ago. My son received $10 000, from Mom, last year. My daughter received shadow boxes and jewels, that w were both my mom’s and my grandmother’s. I received nothing. Earls Children, also received, down payments on their homes, several years ago, from Earl, my step father. I feel so invalidated. I am only 10 mths younger than my brother, however, he o obviously, remains her favorite, and is laughing. I was wondering so I have any right to contest the will, as i see this situation as so unfair.

    • legalwills legalwills says:

      Hi Susan, I think this demonstrates how powerful a Will can be. If a parent treats their children so differently and one ends up “laughing” at the other one, it causes nothing but resentment and can tear a family apart. We cannot possibly say whether a challenge to the Will would be successful but you would have to prove that she was either unaware of what she was doing, or not mentally competent to be writing her Will at that time. Alternatively, you would have to prove that your brother exerted some undue influence on her. I do think that it is worth talking to a lawyer who would be able to give you some options, but you would have to move fast. It’s now about 7 months since your mother died, so we would recommend that you seek legal advice as soon as possible. You may have a claim, but you should receive legal advice based on more detailed information about your family. Good luck and best wishes.

  39. Jim Jim says:

    My Mother died in 1989 leaving all properties to my Father. My father had his will signed in1992. The will stated that his five children should share and share alike. In 1996 my Father along with 3 brothers in law purchased land; Which my Mother had Bequeathed to my father her share; to when she passed away. In 1996 my father sold his share of the above mentioned land to my 4 siblings leaving me out. My Father passed away in 1998. Do I have any legal right to a share of this property? Alberta is the Jurisdiction.

    • legalwills legalwills says:

      Hi Jim, thanks for the comment. Just to summarize. Your father purchased land, and then sold his share to your siblings while he was still alive. He subsequently died.

      Our expertise is with Wills, and it sounds like this property was not a part of his estate when he died. I’m not sure that challenging the Will would make any difference to whether or not you shared in this property as it was not a part of his estate. The only way you could claim a share is if he was duped into selling it or something illegal happened when he sold it. Even then, it happened 20 years ago, so it would be very difficult to make a legal claim on the sale of the property. You could always contact a lawyer to get a legal opinion on this, but I think reversing the transaction from 1996 would be very difficult.

  40. Sandi Sandi says:

    My great uncle is 93 (he is in the hospital and has asked his doctors to discontinue any and all medications), his 2nd wife has alzheimers and does not reside with him. My uncle owns and until recently resided on the ‘family’ farm. His closest blood relative is my mom (his niece who is 83). He has ‘step children’ (not adopted) and it is our understanding he has left the ‘family’ farm to his ‘step’ grandson (no blood involved). Our family (as a whole) are wondering if (when the time comes) this could be contested or challenged.

    • legalwills legalwills says:

      Hi Sandi, thanks for the question. Is your great uncle, the same person as your uncle in this question? A Will can certainly be challenged if it was written under pressure from somebody else, or if the person writing the Will didn’t really understand what they were doing. But, if the Will in this case was challenged successfully and thrown out, then your great uncle’s estate would all go to his 2nd wife, even if she had Alzheimer’s. And then when she dies, everything would likely flow to her children. The only way this can be avoided is if he wrote a Will, and it did not all go to his second wife. Wills have a habit of presenting surprises though, and nobody would really know until your great uncle has died and the Will is read. Good Luck.

  41. Penny Penny says:

    My MIL passed away in Sept 2016. She my husband and I own a home in BC. We all lived in this home for 10 years together. We have Joint ownership. My FIL was also an owner but passed away. And was taken off the title. In my MIL will she gifted my husband the house stating that he has no right to the rest of her estate. His sibling went to the lawyer who did the will and asked for a will search to be done.The day after she passed his siblings their spouses and children started to go through all of her belongs and selling them or giving to good will or keeping stuff. My husband was not a part of it and received nothing .When he did make a comment about something belonging to us they would ask for a receipt. We even had to buy stuff if we wanted to keep it. It was very uncomfortable for him to be there. On the 3rd day after she passed they informed my husband that my MIL was in the process of changing her will but died the day before she was to sign. She had been in the hospital for 3 weeks before she died. We have no idea when she contacted the notary to change the will. The notary is my brother in laws (separated) wife’s sister in law and they are telling us the witness who was in the room with her was his brothers girlfriend. They are saying she wanted to split everything evenly between the siblings. They are now telling us they are going to contest the will and go after 1/2 the house. We have just found out that the will search is done and the will they my MIL has gifted the house to my husband is the most recent will done in 2013. Do you feel they have a shot at getting the will contested? And can they go after 1/2 the house when we are all joint owners?

    • legalwills legalwills says:

      Hi Penny, thank you for the comment. You have a complicated situation, and we would certainly recommend that you seek legal advice. To be honest, I cannot tell from your message which Will is being contested and which Will has your husband receiving the house. I would suggest that you can successfully challenge any Will made by her in the last couple of days of her life, and any Wills made when the witnesses were benefitting from the estate. But you should certainly seek legal advice on this issue. You also need to move quite quickly, as more time passes, and more assets are distributed, it becomes increasingly difficult to make a challenge, or at least resolve it to your satisfaction.

      • Penny Penny says:

        Hi there,
        Thank you for answering my question. I do have another. How can you find out if a will is being contested? We have talked to a lawyer and we have a good case to defend the signed will and dismiss the unsigned one but hiring a lawyer for this costly and don’t want to pay for a lawyer if the sibling are not contesting. Is there a way to find out? Unfortunately his sibling are refusing to talk about this and we don’t know if this is just a scare tactic to see if they can obtain money from our home. Also we have not received a copy of the signed will nor any info on the unsigned one. All of this is very confusing and we would have to retain our lawyer for him to contact the sibling but we don’t want to do that if they are not contesting. I hope this all makes sense. Thank you for your time. Happy holidays
        Penny

  42. Emily Hoyland Emily Hoyland says:

    My aunt passed away 4 months ago. She was twice widowed, and never had any children. Her stepdaughters husband, who is a lawyer (not an estate lawyer) prepared her will, he is also her POA, and executor. I have cared for her for at least 10 years, taking her to apts etc never asking for anything for myself. I paid for my own gas. Some apts. lasted for several hours, so I also bought her lunches. I arranged, for care and was her contact person, for medical issues. I was named as her agent for health care. Do I have the right to receive a copy of her will? At the time she wrote it, she was healthy and I was not caring for her. I don’t believe she included me to any extent. If not, do I have the right to contest the will?

    • legalwills legalwills says:

      Hi Emily, thank you for the comment. You should be able to ask the lawyer for a copy of the Will, and there should be no reason to deny you access to the document. However, a successful challenge to the Will may be difficult. It could depend on who the beneficiaries were and whether she had any family members. If she had no children, spouse, parents or siblings then without a Will, the nephews and nieces inherit. If I was you, I would ask for a copy of the Will, and if it doesn’t seem right, contact an estate planning lawyer to see if you have a case for challenging the Will.

  43. Judy Judy says:

    If a person’s children were not notified of there fathers death. Can they contest the will. And if so how long do they have? Thanks

    • legalwills legalwills says:

      Hi Judy, not being notified of a person’s death would not be grounds for contesting a Will. I’m not sure where you live, but in most Canadian Provinces there is no requirement to include an adult child in your Will.

    • legalwills legalwills says:

      Hi Bernadette, I’m not aware of any government forms, but you can always try and represent yourself. It’s just that lawyers understand the grounds for a challenge, and will know what types of challenges have a chance of success. Many people feel that they can challenge a Will because they were verbally promised something, or that they were not left something that they should have received. These challenges are unlikely to be successful. And if you are challenging on the basis of dementia, or coercion, you might want to have a lawyer prepare a case for you. You would have to call upon medical witnesses to support your case. You could try and do it yourself, but you would probably have a greater chance of success with a lawyer (and we are no shills for the legal profession, it’s just our honest opinion).

  44. Nick Nick says:

    Hi there!

    My Uncle died in 2008. I’m his godson, and I was told he was leaving me and my brother a sum of money. After his passing, I was informed that he left everything to his new wife. It never sat well with me. Is there any way I can find out if anything funny happened? He had brain cancer at the time of his death and I suspect something could have happened to change his will. What can I do?

    Thanks in advance,

    Nick

    • legalwills legalwills says:

      Hi Nick, thanks for the comment. Firstly, you have to keep in mind that verbal promises don’t hold any weight in law. Many people promise things verbally but fail to capture those promises in a Will. But, it is also common for people to be influenced, close to their death, to change their Will. If this happens, there is always a chance that the Will can be challenged, and thrown out. If there is a previous Will in existence, then often the previous Will would then become the official Will. But it all depends on a judge’s decision. What you would need to do is find the Will. One possibility is that it was filed with the probate courts in the town in which your Uncle died. If it was probated, you can pay a small fee and ask for a copy (it’s at least worth requesting a search). But if everything passed directly to his spouse, then there is a chance it was not probated at all. In which case, your search for the Will would be very difficult.
      Good luck.

  45. Rhea Tait Rhea Tait says:

    I am from Ontario Canada, and i am wondering if i have grounds to contest a will that was never signed. My brother passed away July 2015 and left his wife having total control of his estate witch i completely agree with , She was told verbally by my brother that my children were to get an inheritance after every thing was settled, so my sister in law informed her lawyer verbally at the time my brothers will was being read, well last week my sister in law passed away. she had made up a will but it was never signed. Now im being told that her parent were the beneficiaries to the whole estate and that my family is to get nothing from my brothers estate. Would i be able to contest this situation.

    • legalwills legalwills says:

      Hi Rhea, thank you for the question. A Will that is not signed is only legal in Ontario if the whole document is handwritten – a holographic Will. If the Will was typed up and not signed, then the Will is not a legal document in Ontario. If we assume that your sister-in-law did not handwrite the Will, then what you have been told may in fact be correct. Everything that your brother owned would have passed to his wife (your sister-in-law) and if she died without a Will, then everything would go to her parents (assuming they had no children). That’s the way the law works….dying without a Will is a disaster. I’m not sure how you could challenge it. Verbal promises are not grounds for a challenge.

  46. Fred Fred says:

    I live in B.C. and am a father of 2 sons which I have very little contact with. I have remarried over 13 years ago and want to ensure that if I pass that my wife is taken care of. Must I leave a small portion to my sons or can I leave all our assets to my wife without concern over my sons contesting the will?

    • legalwills legalwills says:

      Hi Fred. BC is unique among the Canadian Provinces. Based on some recent court judgements, adult children appear to have a right to make a claim against an estate. Although if you were leaving everything to your wife, it may be difficult to challenge the Will. Your sons can definitely challenge the Will, and ultimately a judge will decide whether the challenge will be successful or not. We couldn’t possibly guess what that judgement would be.

    • legalwills legalwills says:

      Hi Chris, I’m not sure that there is a hard and fast rule. In the UK for example, it is very clearly laid out; 6 months for a maintenance claim, 12 years for a beneficiary claim, and unlimited for fraud. In Ontario, the “limitations act” was recently tested with Wills, and the conclusion was that the 2 year limit applied. If you are thinking of challenging a Will, we would recommend that you see legal advice

  47. Kevin Kevin says:

    Hey there… im writing from ontario… my grandmother passed away 2015 leaving the estate to my father… my fater passed away feb of 2016… my sister and i were not benifieceries of the will… instead, his estate went to his wife…. my sister and i have no relation with my father but it seems pretty unfair that the money my grandparents worked hard for goes to a non blood relative… can we contest this? If so, what if shea already spending money?

    • legalwills legalwills says:

      Hi Kevin, thanks for the comment. I assume your father’s wife is not your biological mother. This happens a lot and it’s what we call a “blended family” situation. I’m not sure how your father prepared his Will, but he should have included a “lifetime interest” trust. Our service supports this, and any decent estate planning lawyer would have included this. You are right, it is not fair, but it would be difficult to challenge the Will. Your father has every right to leave everything to his wife, but it just sounds like it was a really poorly written Will. His wife is now free to leave her estate to whoever she wishes, and her estate also includes the money that she has inherited from your father, as well as everything indirectly inherited from your grandparents.

  48. Chris Chris says:

    My wife’s grandmother passed away last year. Her grandfather had predeced her grandmother – his will was made to divide the estate equally amongst their 4 daughters (one being my mother-in-law). That will listed my mother in law and one of the aunts as executors.

    Not long after the passing of the grandfather the aunt that was executor pushed to have the elderly mother draft a new will with a lawyer that listed her as POA and sole executor.

    This will also listed the four children and provided 2 shares of the estate each to two of them (one being the executor) and 1 share each to the other two.

    In addition it provided 2 shares each to the four grandchildren from the aunts that received 2 shares, and failed to even mention the other four grandchildren (my wife included) from the other two aunts.

    Do not think this is fair – can my wife and other grandchildren contest being excluded for no real reason while the others were included? Can her mom challenge the unfair distribution of shares? Thank you.

    • legalwills legalwills says:

      Thanks for the comment. You could seek legal advice, but in general, it’s very difficult to challenge a Will on the basis that it wasn’t fair. A person has every right to leave their estate to say, two of their grandchildren, and not include the other two grandchildren. There may be any number of reasons why they might want to do this. But, if you feel that the Will was made at a time when the grandmother didn’t have the capacity to write her Will, then you can certainly challenge the legitimacy of the Will. If you can show that the aunt unduly influenced the grandmother, then you have a claim, but it would have to be proven. You would have to speak to a lawyer to see if there would be enough evidence to show that there was either undue influence, or a lack of capacity. Good luck….it seems that something untoward may have been going on.

  49. Debbie Debbie says:

    Hello, My 85 yr old father and his 2nd wife (who have no children together) moved from Ontario (where his 4 children all live) to British Columbia in 2015. He had in 2000 made a Will with a lawyer in Ontario naming his eldest daughter and his 2nd wife as executors. But when he moved he was told by a BC lawyer (who the wife’s daughter who lives in BC had prior dealings) he had to make a new Will as his original Ontario Will is no longer valid in BC. The new BC’s Will’s executors is his 2nd wife’s 2 daughters one who lives in BC and one in Alberta. (no blood relations to my father) He has no property in Canada. Did my father had to draw up a new Will because of a different province? Can I ask the Ontario lawyers for the original Will when my father’s passes? Can I contest the BC Will due to the these changes? If my father’s beneficiaries are not his children will I even get a copy of the BC Will? My father’s wife in the past has prevented his family from seeing or talking on the phone (as she is listening on the other line) He had an operation but his family was not told by his wife until after the fact. She has had 2 husband’s before who both died. She met my father just before her last husband passed away. Thank you for any information that you can provide!

  50. Sandra Sandra says:

    Hi, my parents had a will drawn up for their business & personal
    In 2000 and called a family meeting to discuss the contents.
    One of the 4 siblings was employed by the family business and that included her husband as well. We were told that the business
    Would be left to them (5millon) and the personal would go to remaining 3 siblings which would amount to approx $900,000
    Each. 8 yrs after my Dad passed my Mom removed me & my sister from POH and added to the will that we will pay the taxes to transfer the shares for our sister&brotherinlaw. We were never told about the POW of health change for 5 yrs and even continued to
    Care for her after discovering this . My sister is a POF and has gotten a considerable amount more than the business is this suspect to a court of law? Do we have a case? My mother could be easily manipulated and our share is now about half of what our parents told us before they passed away. Thanks

    • legalwills legalwills says:

      Hi Sandra, thank you for your comment. To be honest, it’s a little tricky to follow. I am not sure what you mean by a POH, POW and POF. You may have a justifiable claim if you feel that your mother was manipulated or unduly influenced. Bear in mind that verbal promises do not have any legal weight, and there is nothing to say that your parents have to treat the children equally. It looks like you may need legal advice in this matter, and we would recommend that you see the services of an estate planning attorney to see if you have a case.

  51. Patty Patty says:

    My mother passed away Feb 12, 2016 her husband recently gave the house to the cleaning lady’s daughter. The executors (not related) went to the lawyers and they were told they were removed and unable to see the Will, so the executors called us (3 children). Apparently he removed the executors that were assigned for years, a week after my mother died and had a new Will drafted up. . While my mother was in hospital she told the executors to make sure her wishes were carried out. She told me that she wanted my daughter to have some of her belongings. What can we do to ensure her wishes are carried out?

    • legalwills legalwills says:

      Hi Patty, I’m sorry to hear of your situation. As with most of the replies to the comments on this article, you need legal advice. I am not sure why the Executors were removed from your mother’s Will. Her husband and his lawyer would not have the power to do this. Your mother’s husband cannot draft a new Will for your mother a week after she died. You definitely need legal advice, this doesn’t sound right at all. Good luck

  52. Anna Lawrence Anna Lawrence says:

    My stepfather did a will and POA with my mom as executor. In the last year of life he developed some memory issues due to his progressive MS. A brother appeared about 4 months ago from out of province – this brother has in the past tried to gain access to funds from other deceased members of the family. Just over a month ago he hired an estate lawyer – went to the nursing home and had my stepdad sign papers not fully aware of what he was signing. The papers were a new POA and request for legal separation from my mom and than had the papers sent to my mom. Mom got a lawyer and proceeded with his own action. 3 weeks a new will showed up that we saw by accident – this was given to the lawyer. My stepdad died yesterday. The new will shows the brother as executor and leaves everything to him including 1/2 the house – which is paid for. Mom and stepdad shared this home for over 30 yrs. The brother is after the rrsp’s and investments – pure greed. Within an hour of his death, he was calling the banks. Moms lawyer is getting a court order tues to contest this new will. All these papers were done in the past 5 – 6 weeks based on the dates – hes been at his worst cognitively. To our knowledge, the only witnesses to these documents were the lawyer, his assistant and the brother and a nephew. I am worried to death that they could come in and try to take her home away – shes almost 70. Can assets be removed from the home upon death or how long is the process? The brother is coming to town to collect the death certificate – deal with the remains. Mom isn’t even allowed to say her final goodbye to a man shes been married to for almost 35 yrs. This is simply terrible. I dont understand how long these things take and if he shows up to try and remove things, can we stop him.

    • legalwills legalwills says:

      This is such a terrible story. We can only recommend that you try and find an estate planning lawyer to help you. People are greedy. Lawyers should not be preparing Wills and PoA’s for people who do not have the capacity to know what they are doing. You may have grounds for challenging the most recent Will and also the PoA. I am pretty sure that the powers within a PoA do not extend to requesting a legal separation from one’s spouse. It’s a very sad story, but you need legal advice.

  53. Susan Susan says:

    My husbands father in law passed away last October 2015. His wife is still alive at the age of 97. She has alzimers, and does not even know her name. My husband has taken care of these 2 people since he had married their daughter who has past away also. All of the kids passed away acutally. The father in law did a new will in 2013 leaving my husband everything because knowing his wife had alzimers. He wanted my husband to have it all. The residence where his mother in law is contested the will. So now the mother in law will get everything and when she passes, the grandkids who are not in the picture will get everything stated in the will. Tell me something why do we make a will if they dont respect our last wishes.

    • legalwills legalwills says:

      Hi Susan, thank you for your comment. It is a little complicated to follow, but it looks like you need legal advice. I’m not sure that a residence can contest a Will. Are you sure it wasn’t the grandchildren of the mother-in-law who contested? It would be impossible for us to know if there are grounds for contesting. If your husband’s father-in-law updated his Will two years before he died and he was in his 90’s it is possible that a challenge to the Will may be successful, it just depends on his state of mind when he updated the Will. We would recommend that you find an estate planning lawyer to help you.

  54. Gilbert Gilbert says:

    Hello….My uncle who is 84 lives in Ontario and I live in Alberta, he has two sons in their 50’s who have very little to do with him. They do not visit him, help him, aid him in any way, however he has a lot of assets and a home with a estate value of near a million dollars. He is so upset that his sons “disowned” him (in his words), that he is leaving them only a small portion of his estate. He is planning on dividing his estate in his will and leaving it to other family, nephews and nieces and friends who have helped him though the years. My question is, do his sons have any grounds to contest the will, made by a lawyer this year?
    thanks for your help and guidance.

    • legalwills legalwills says:

      Hi Gilbert, thank you for the comment. We cannot provide legal advice on your specific situation, but we can give some general information. Different Provinces have different laws related to the disinheriting of an adult non-dependent child. So far, in BC there have been successful challenges by disinherited non-dependent adult children, but it’s fair to say that in Ontario these challenges have been unsuccessful. Ultimately, a judge will decide whether there are grounds for contesting a Will, and this could include whether your uncle had the capacity to know he was preparing a Will at the age of 84. If it was made with a lawyer, this would help in establishing this capacity. But in Ontario previous cases suggest that challenging a Will simply because an adult child has been left out would be unsuccessful. The lawyer who helped prepare the Will would have been able to advise on this specific case.

  55. Heidi Heidi says:

    I want to know how long someone has to contest a Will in Canada?
    I am also wondering, since my elderly mother, willed the house, it contents and land to me, if the executor has to proceed with the itemization process?
    If there are enough assets to pay off my mother’s debts, does he have to sell my mother’s vacant lot to pay off the debts? There are other assets she has that have sufficient funds to pay the debts?
    The executor is emeshed with my younger sister due to being close friends for 35 years. He is not maintaining an impartial stance and how could you remove the emotional connection? What is the process to have an executor removed, if it continues? Can the executor enter the home with a key without giving me notice? Can he charge me rent to help pay the debts? Do I have to do this due to inheriting the home and it’s contents?

    Please advise.

    Thank you, kindly,

    Heidi

    • legalwills legalwills says:

      Hi Heidi, this is a lot of questions, and we cannot give you specific legal advice on this blog. We can give you some general information, but you may need to seek legal advice from an estate planning lawyer in your town. Some general information though; the debts are paid before the estate is distributed to beneficiaries, so it is typical for an Executor to handle the payment of debts first, and then everything that it left over is then distributed. The Executor does have a responsibility to provide detailed accounts to all of the beneficiaries. But the Executor does have a responsibility to secure the assets, so yes, they can enter the home and even change the locks until the estate is distributed. Generally, the Executor has about a year in which to sort all of this out, but if it is a very complicated situation, they can take longer. If you were paying rent on the home, then it’s reasonable that this should continue while the estate is sorted out. Ultimately, you may need to find a lawyer who can help you with this.

      Thank you again for taking the time to provide your comment.

  56. Lori Lori says:

    I would appreciate your advise on this terrible will problem. My aunt, 89 years old was diagnosed with terminal cancer, her brother and her nephew were executors. Her brother was newly named an executor for the past year, her nephew (from BC) was named executor for many years. 4 weeks when my aunt was away from dying, her brother from Ontario took her to her lawyer and had the entire will changed, including taking the nephew off as executor. Her brother has had the million dollar home put into his name and everything to himself. My aunt wanted her money to be donated to charities, which is stated in the will the nephew has. The nephew has asked for a copy of the will, but have received nothing. Please advise if this is worth persuing as we would like justice and my aunt`s last requests to be honored. The nephew and neices were very close to this aunt…we do not want money, we want justice and her requests honored.

    • legalwills legalwills says:

      Hi Lori, thank you for your comment. This is such a common situation, and very sad. It is unfortunate to see how devious people can be when large sums of money are involved, and how it can tear apart families. Yes, we would encourage you to seek legal advice, make an appointment with an estate planning lawyer and see if they feel you have a case for contesting the Will. Please bear in mind that as a niece, you may still end up with nothing, but an estate planning lawyer would be able to give you a better idea. Updating a Will 4 weeks before death to leave everything to the person accompanying you certainly looks suspicious. Good luck.

  57. Diane Diane says:

    My husband who has cancer has a will completed by a reputable lawyer, he has provided his nieces and sister with a sum of monies, we believe his sister will want more funds, can she contest the will. We married in 2006 and the will has been updated regularly with changes decreasing sister’s amount of inheritance.

    • legalwills legalwills says:

      Hi Diane, thanks for taking the time to post a comment. We cannot give legal advice on this blog, but we can give some general information. In general, unless your husband’s sister is a dependent, it is unlikely that she would be able to successfully challenge a Will because she felt she should have received a larger inheritance. There is no legal requirement for anybody in Canada to leave anything to their sister. Of course, if the Will was written fraudulently, or your husband didn’t have the capacity to prepare his Will, then it is possible that the Will could be completely overturned.

  58. Cos Cos says:

    Hi, I am a single person, with no dependents. I have named beneficiaries (institutions, that I have already informed about my intentions) for both my TFSA and RRSP.
    Do I need a will to make sure that the TFSA and RRSP will go to the beneficiaries ?
    What are the tax implications in these transitions ?
    thank you, Cos

    • legalwills legalwills says:

      Hi Cos, thanks for the question. We cannot give legal advice on this blog, but we can give you general guidance. If your policies have designated beneficiaries, then they don’t form part of your estate managed by your Will. The advantage of doing this is that your probate costs are a little lower as probate fees are a percentage of the estate. You still need a Will though. You don’t know what assets you will have when the time comes; it could be next week, or decades from now. You should always have a Will, and update it throughout your life.

  59. Ken Ken says:

    I have been separated from my wife here in Nunavut for 3 years and am now living common-law with another woman. I made a Will using an on-line template and I did not name my former wife in it but I named my common-law as a beneficiary. Is that something that could be successfully challenged?
    Thanks

    • legalwills legalwills says:

      Hi Ken, thank you for leaving your comment, but we really cannot offer you specific legal advice. We would actually recommend that you try to find a lawyer who can advise you because if you do not have a legal separation agreement, then there may be a chance that your estranged spouse could make a claim on your estate. We cannot say either way, and suggest that you ask a legal professional. Sorry about that.

  60. tiz tiz says:

    Hi, we were disinherit, and the judge just issue a probate to my sister, is that true that the testator must specify reasons why of the disinherit, do we still have a chance to present a motion against the certificate of state, and how costly and successful that could be, and also the will was made from two lawyers that got charged with fraud, and suspended few months later.

    • LegalWills LegalWills says:

      Hi Tiz, thank you for leaving your comment. Unfortunately, we cannot give you legal advice specific to your situation, we can only give general information. It sounds that you do need legal advice though, and we would recommend that you seek the services of an estate planning lawyer. In most Provinces there is no requirement to include adult children in a Will (BC is the Province most likely to respond to a Will challenge from a disinherited adult child). But if the Will was not prepared correctly, then you may be able to get the Will thrown out. But a lawyer would have to help you with that, and it could be expensive.

  61. Paul Paul says:

    My dad passed away on Sept. 14th. He had 6 sons & 2 daughters along with his 2nd wife who is not a mother to the 8 kids.The POA was given to his wife’s daughters during the time that they have been married. This information was found out during the last week that his wife’s daughters were appointed POA. I’m asking for a copy of his medical records along with a copy of the will for my father, but don’t think they are going to grant permission for this to happen. Since my dad remarried to his new wife we have been pushed aside due to his wife not wanting us involved in our father life. This has been going on for the last few years as we had not had much contact with our dad not even at Christmas. His wife is in the hospital now & mentally she is not there as she has been a bit off the deep end for a while. We just had a private service just for the sons & daughters on the weekend for my dad. Now we are waiting for the POA to let us know when we can have the service to lay my dad to rest & was told that they need to let us know depending on their mothers condition to plan a date.
    This whole ordeal has been very strange as when he was in the hospital it was for a operation of his hip, only to find out that he had more problems than just that. We found out that he had bad kidneys & was not put on any type of medical equipment without any of his kids being asked about this.
    I really want to know what our options are as to contesting his will & any other things that we can do.

    Thanks

    • legalwills legalwills says:

      Hi Paul, firstly, I am sorry to hear of your loss. Your situation is actually very common with senior, single parents getting involved in new relationships and the new partner having strained relationships with the step-children. You must not confuse the Power of Attorney document (which is immediately cancelled as soon as the person dies) with the Will (which comes into effect as soon as the person dies). The PoA now has no legal standing whatsoever. You mention that “Now we are waiting for the POA to let us know when we can have the service to lay my dad to rest” but the PoA would not have this information in it, and even if it did, it would not have any status. We can only recommend that you seek legal advice and a lawyer may be able to force somebody to present you with a copy of the Will. You should be entitled to see the Will of your father and they should not be able to keep that from you.

      Sorry we cannot be of any more help than this.

  62. Lynne Lynne says:

    My mother died April 2013 – my sister was executor – my brother and I residiary beneficiaries. Lawyer executor hired was hers assisting with estate matters. Despite many attempts my brothr and I did not receive any notice of what was beign spent, accounts were never frozen – sister had access to help Mom who was blind pay bllls, etc. Never was joint account. Probate was not done until 5 months later, the same time we received coy of the will. It was only in March 2015 that we received a bad version of accounts – according to our records $145k unaccounted for. My brother and I requested passing of accounts in May 2015 – the lawyer for the executor is stalling we are prepared to file notice of objection if he ever passing the accounts. Also time has passed for objections to will – more than 2 years, so what can we do

    • Hi Lynn, unfortunately we cannot really offer you legal advice on our blog. It sounds like you have been doing all the right things. You should seek advice from a legal professional who can help you track down the missing $145k and demand accountability for the missing money.

      I’m sorry we can’t be of more help, but wish you all the best. It is amazing how deceitful people can become when Wills and estates are involved.

  63. pamela pamela says:

    Is it not true that the advantage of having a lawyer make up the Will and have another lawyer sign as a witness to the Will as an authorized person, you would not need an Affidavit of Execution for the Will. In this case of a self-Will, is it not absolutely necessary to have an Affidavit of Execution as no legal authority witnessed you signing the Will – or is this a common misconception.
    Thank you.

    • legalwills legalwills says:

      Hi Pamela, you touch on two common misconceptions. Firstly that having your Will signed by a lawyer makes the Will more “legal”. In fact it doesn’t. Once your Will is signed in the presence of two adult witnesses who are not beneficiaries, it is a fully legal Will. These adults can be friends, neighbours or co-workers.
      However, in some Canadian Provinces, lawyers automatically have the authority to “notarize” documents, so if a lawyer signed it, you would effectively be having the document notarized. There is no legal requirement to have a Will notarized, nor does it make the document any more legal.
      If there is a challenge to the Will on the basis that the document was not signed appropriately, then a judge may ask the witnesses to swear under oath that the document was indeed signed correctly. Having the witnesses sign an affidavit does this pro-actively and is effectively having the witnesses sign under oath when you sign the Will.
      It is a matter of personal choice whether or not you have your witnesses sign an Affidavit at the time of signing your Will.

Leave a Reply

Your email address will not be published. Required fields are marked *