Testators should expect some blowback from their disinherited kids when they decide to split their estate unequally between their children.
Whatever the state of their recent relationship, the death of a parent often kickstarts a tumultuous period for the children they leave behind, stirring up new feelings and old sibling rivalries.
In this business, you often see middle-aged and older siblings slip back into their old childhood roles, lashing out at one another as arguments over a parent’s money, prized possessions or funeral service are amplified by the emotional upheaval of the moment.
That’s what seems to have happened in the case of an Ottawa woman who died in 2020, leaving a will that split her entire estate between just two of her six children. One of the disinherited daughters challenged the will, claiming that her sister (who received 90% of the mother’s assets), had financially exploited, defrauded and unduly influenced their mother in her later years.
The problem was that the disinherited daughter did not provide any evidence to support her allegations, prompting the judge to dismiss her case. In a separate costs decision, the judge ordered the unsuccessful daughter to pay her sister $55,000, writing that she had demonstrated “reprehensible litigation behaviour.”
Will challenges are notoriously difficult to prove in jurisdictions like Ontario, where testamentary freedom is regarded as almost sacrosanct. It will take a lot of evidence to convince a judge to go against the wishes of the deceased in court and make provisions for someone who was not a dependant of the deceased.
Still, you should think hard before cutting out a person who expects to feature in your will, or at least consider giving them some advance warning.
Although the sister in this case received nothing at all from her mother, I’ve seen cases where minimal differences in treatment spark huge legal disputes. Bruised egos or perceived favouritism, and the personal slight of disinheritance will be enough to send plenty of people into fight mode.
But testators can often nip 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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