Spelling out your reasons for disinheriting an adult child could help avoid an expensive estate dispute after you’re gone.
In a recent Ontario case, the daughter of a deceased 99-year-old challenged her mother’s will, claiming her disinheritance from the estate was “inexplicable.”
According to the ruling, a previous will signed by the mother in 2007 would have split her $457,000 estate equally between her three children, but under the 2015 version – the last before her death in 2020 – only two of the siblings got a share.
As part of the disinherited daughter’s court challenge, she sought medical, financial and legal records belonging to her mother, claiming that the circumstances surrounding the execution of the 2015 will were highly suspicious and that her mother lacked capacity to sign it.
Despite the daughter’s lack of comprehension, the judge in the case denied the request for disclosure, finding that there was no evidence of undue influence and that the mother’s decision was adequately explained by an earlier dispute between parent and child while the daughter was acting as her mother’s attorney for property and personal care.
The decision says the pair fell out when the mother discovered her daughter had asked for investment accounts in both their names to be moved to Calgary without her authority. The mother ultimately replaced the daughter as her attorney for property in 2014 after she failed to respond to a lawyer’s demand for an accounting of her time in the role.
Adult beneficiaries like the one in this case are often surprised to find out that their parents are allowed to cut them out of their estate so easily. Ontario holds testamentary freedom virtually sacrosanct, which means that judges are quite likely – though not guaranteed – to uphold the wishes of the deceased in court, as long as the claimant was not one of their dependants.
Still, testators should think long and hard before disinheriting a person who expects to feature in your will, or at least consider giving them some advance warning.
As I’ve learned in my years of practice, it doesn’t take a huge sum of money to spark a legal dispute over a loved one’s assets – I’ve watched too many families tear themselves apart over dented egos and long-held grudges perceived favouritism, and the personal snub of disinheritance will be more than enough to send many people into fight mode.
Testators stand a chance at nipping these issues in the bud by giving beneficiaries an idea of what they can expect from a will. Even if it’s less than they had hoped, setting realistic expectations ahead of time will take a lot of the heat out of the situation when estate administration begins.
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