Testators who “trust” their heirs to take certain actions are taking a big chance.
Many people use their will to express their hopes and desires about what will happen to the legacy they leave behind. But without the correct drafting, these “precatory” expressions may not carry any legally binding obligation, as the sons of a deceased Muskoka woman recently discovered.
The mother at the centre of the case wrote her own will, leaving all of her assets – including her home and investments and savings accounts – to her older son, adding that “I trust him to care in whatever way he sees fit to provide for his brother.”
The younger brother took the matter to court, claiming that the will had created a testamentary trust for his benefit over the estate’s assets.
However, the judge was not convinced and dismissed the younger brother’s claim entirely, writing that the mother’s will was unambiguous and had clearly gifted the entirety of the estate to the older brother.
“The use of the words, ‘I trust’, do not create a binding obligation on the Defendant,” the judge wrote, adding that the older brother had only a “moral obligation” to take care of his younger sibling.
This case is sadly emblematic of estates lists in courthouses across the province, where feuding relatives have seized on inaccuracy or vagueness in the deceased’s will to challenge the inheritances left to their fellow beneficiaries.
The saddest part is that nobody really wins in the end, since the eye-watering expense associated with litigation is typically absorbed by the estate itself, eating away the very assets the parties are hoping to inherit.
Although the judge in this case found the wording in this case unambiguous, we’ll never know exactly how enforceable the mother wanted the ‘trust’ she placed in her older son to be.
If you hope to keep your own estate out of the courts, your best bet is to hire an experienced trusts and estates lawyer who can help you ensure the language of the will accurately reflects your wishes 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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