Testators should take care when “wishing” for certain outcomes in their will.
As the sister of a deceased Thunder Bay man recently discovered, not every wish, hope, desire or other precatory expression in a testamentary document creates a legally binding obligation.
The man at centre of the case left his house to his common-law partner, adding it was his “wish” that when she sold the property, 20 per cent of the proceeds would be distributed to his other beneficiaries, including his sister – the estate trustee.
When the estate ran into financial difficulties, the sister asked the court not only to force the sale of the property, but also to enforce her brother’s wish, arguing that the deceased’s partner was effectively holding the 20 per cent share in trust for the other beneficiaries.
However, the judge sided with the common-law partner, ruling that the language in the will was not definitive enough to create a legally binding trust. Instead, the partner had only a “moral obligation” to hand over the 20 per cent after any sale goes through.
Rather than directing the sale of the property, the judge sent the parties back to the negotiating table, noting that the partner would still be left with around $300,000 to find a new home if she did decide to honour the deceased’s wishes to distribute cash form the sale.
Across the province, courthouse case lists are full of disputes like this one, where feuding relatives have seized on inaccuracy or vagueness in the deceased’s will to challenge the inheritances left to their fellow beneficiaries.
In families with strained relations, a visit to court may have been inevitable at some point anyway, thanks to years of built-up resentment, sibling rivalries and other destructive family dynamics. But sometimes testators give them the pretext they need to fight by including words and phrases that are open to interpretation.
The saddest part is that nobody really wins in the end, since the sickening expense associated with litigation will typically be borne by the estate itself, eating away the very assets the parties are hoping to inherit.
Although the will in this case was drafted by a lawyer, problems with ambiguous language are even more likely when testators decide to go it alone with DIY will kits.
An experienced trusts and estates lawyer can help testators ensure the language of the will accurately reflects their wishes and directions regarding gifts, guardianship, funeral preferences and much more, all while minimizing the tax burden on the estate.
The more complicated and valuable your assets are, the more essential it is to obtain sound legal advice before finalizing an estate plan.
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