We asked you to email your questions about how to avoid -- or deal with -- family feuds over wills and estates. You responded, and here are the answers to your questions. Emails are answered by Jordan Atin, estate lawyer and the author of "The Family War," and Detective Ed Lum of the Hamilton Police Service.
QUESTION:
What about the problem of an only child cut out of a will by a father in favour of the father's current wife and her children? I was not even mentioned in this will - as if I did not exist. I am his only child. At the time I considered contesting the will, because there was some dementia involved - especially in the last year before my father died. But I was told by lawyers that he had made his will when he first got married and when, presumably, his mind was still clear and he knew what he wanted. I decided at the time to take my lawyer's advice and let the matter go. My decision has always rankled in my mind. Did I do the right thing, the sensible thing? Should I have tried - just to say I did try?
ANSWER (Jordan Atin):
I think she did the sensible thing. In most cases, these matters drag on for years & by the end, people forget why they were even fighting. And challenging a will can be very difficult. Circumstances she's described are not unusual, but if you're not written into a will, you have to prove that he didn't have mental capacity, which can be difficult.
QUESTION:
Hello - my sister, who is also the sole executor of my mother's estate (there are 5 siblings), was left the family home with the remainder of the estate to be split equally among the other four siblings. Can she sell that house before the rest of the estate has been distributed?
- Jim
ANSWER (Jordan Atin):
The short answer is yes. Because there is a specific gift - the home - it can be transferred anytime, including before the balance of the estate is distributed. Keep in mind, that as the executor, she is legally entitled, but to keep family peace, it's a good idea for the executor to wait until all of the beneficiaries receive something from the estate.
QUESTION:
My Mom passed away from cancer a year ago and had left me the executor of her will. She divided equal portions for my brother and me (which I have already given him his portion) and then the remainder of her money is to be divided among her 4 grandchildren, in trust when they turn 25, in my name. The eldest is 12 and the youngest is 5 at this present time. Can you please tell me the best possible way to invest this money for them so that I am not held accountable?
- Brigitte
ANSWER (Jordan Atin):
While I can't give you investment advice, the best advice I can give is to hire a professional investment advisor - and keep evidence and records of their advice to justify any issues down the road. You can't guarantee that your investment is going to increase, all you can do is act prudently - and stay away from risky investments - to ensure the best possible outcome. If you don't invest prudently, the beneficiaries can go after you for the loss to their inheritance.
QUESTION:
A family member has stated all the money in a relative's will was left to her. Her late husband, my brother, had power of attorney. What is my next step? How can I follow up and get proof that this is the truth?
ANSWER (Jordan Atin):
Once a will is probated, it becomes a public document and anyone can get a copy by going to the court & requesting it. Usually, you are notified if you are a beneficiary. But if you are concerned, you can contact the estate lawyer to confirm your status.
QUESTION:
For the past 2 years my father has been living with another woman. In the short time my dad has been with his new lady, she has accumulated quite a few assets - all of which my Dad has paid for. What are her rights? Could she contest the will since they are not married?
- Name Withheld
ANSWER (Jordan Atin):
Depending on where she lives, if they are living together for 3 years or more, she would qualify as a spouse and as a spouse, she would have the right to support from his estate, as determined by the judge. By she wouldn't want to contest the will, because she wouldn't have been a beneficiary of a previous will. When a will is contested successfully, it's rendered invalid and the previous will is brought back. If you are not a beneficiary in a previous will, it makes no difference.
QUESTION:
My husband and I both have children from our first marriages. He has a sizeable life insurance policy, RSPs and cash, which is all left to his children. If he should die before I do, am I obliged to pay for his funeral?
- Linda
ANSWER (Jordan Atin):
The estate is required to pay for the funeral costs before paying out anything to the beneficiaries.
EMAIL:
My father re-married and left all his belongings to my step-mother. Since he died, the house has been sold and we've had no contact with her. Do we have any legal grounds to sue?
-Monica
ANSWER (Jordan Atin):
It really depends on what the will says specifically. When there are second wives & second families involved, you really have two options when it comes to estate planning. One is to give it to your spouse outright, no strings attached and the other is to put it in a trust, so that it's available for your spouse for their lifetime, but goes to your children, when your spouse dies. But, in the second scenario, the step-children have more control over the purse strings. It puts the surviving spouse in an awkward position. If the estate is big enough, the best thing to do is get a life insurance policy and give your kids the redemption from the policy, while leaving your estate to your spouse.
EMAIL:
What happens when your adult child and their partner receive a significant sum (such as a house) and then there's a break-up and the partner ends up with 50%... through no contribution of his own?
- George
ANSWER (Jordan Atin):
In a lot of provinces, inheritances that are received don't have to be split with your spouse when you separate. However, you have to keep it separate to the extent that you can trace that money back, ideally through a bank account. The real problem people get into is that they take that money, pay down the mortgage or buy a bigger house. If the money is invested in a matrimonial home, you can lose that protection - the house does get split. As well, if you put the money into the spouse's name, you can lose the inheritance.
EMAIL:
If two people are both named as powers of attorney, does each need the other's permission to act?
- Judy
ANSWER (Jordan Atin):
It all comes down to actual words used in the document. Are they listed as joint or silent? If it just says "I appoint A & B," then they have to act unanimously. If you want one of the powers of attorney to act - then you list them as "severally."
So, to clarify, if you say A "and" B - then they have to consult each other. If they are listed as A "or" B - either one can act on their own. Usually, the latter scenario happens when someone has investments in two different places - so they have a power of attorney in each of those places. It's also a good way for a check & balance, to make sure everything is on the up & up.
EMAIL:
My sister is in a common law relationship. If she has only named her children in her will, can her partner's children contest it?
- Marlene
ANSWER (Jordan Atin):
It's important to remember that if your sister marries this man, instead of just living together, that revokes her previous will. Marriage revokes a will automatically. But let's say she doesn't marry him. If he's a common law spouse as defined by the different provinces (in Ontario - a couple has to live together for 3 years to be considered "common law") and if he's not provided for in the will, he would likely qualify as her dependant and be entitled to support from her estate. Now, if his children were treated as your sister's own children, then they are considered a family and those kids would qualify as dependants as well, because she has a legal obligation to her dependants. Does she support them? Pay for their education? These are the questions the court will be asking.
EMAIL:
My sister and I are acting as joint powers of attorney for our 94 year-old grandma, but we have not been able to work well together & our relationship has deteriorated. How can we make decisions?
- Mary
ANSWER (Jordan Atin):
Unfortunately Grandma didn't do what I would recommend - provide some actual instructions to the powers of attorney as to what her wishes are. That's really what our law requires. Powers of Attorney are not supposed to make decisions for you, they are supposed to implement decisions that you already made. Many people find themselves in this situation and it can be one of the more difficult ones, because of the urgency of the issues you need to decide.
For example, if there is no living will and if there is a "life and death" decision that has to be made, if there are no instructions, then the powers of attorney have to decide, based on the best interests of the incapable person. There's no right answer. In this case, there are 2 granddaughters who both think that what they're doing is in the best interest of grandma. So - worst-case scenario, they would have to go to court, which can be very expensive and can rip families apart. There is nothing more emotional than making life & death decisions about your loved ones.
EMAIL:
What guarantee is there that my will is going to be executed as written? If not, what's the point of even having a will?
- Connie
ANSWER (Jordan Atin):
It's important to note that 99% of will challenges settle - not many go to court. And the executor doesn't have the right to change the will, he or she sometimes has discretion, but that's the extent of their power.
It's not as easy as you think to challenge a will. You are assumed to have the capacity to make a will, when you draw it up. Courts get suspicious when an elderly parent makes a will, or when someone draws up a new will on their deathbed. It's also suspicious when someone changes their will several times - that's what courts literally call "suspicious circumstance" about the validity of the will. Without those circumstances, to challenge a will is next to impossible.
One of the main problems is that people generally don't draw up a will until they're about to die. The 3 most important factors to consider are: age, mental capacity and does the will make sense? There is also a fallacy that if you leave a token amount for a family member, they can't sue. That's completely false and it's not going to stop a will challenge.
QUESTION:
In smaller towns, what department within the RCMP do you contact when you suspect fraud and/or manipulation regarding assets of parents' estates?
Answer (Detective Ed Lum):
You should report it to your local RCMP detachment. They don't all have separate fraud squads. It's up to the RCMP who they further the report to, within the RCMP. They will take it from there.
QUESTION:
My sister is 78 & showing signs of mental illness and paranoia and is getting worse. She recently gave total financial and physical power of attorney to her "hairdresser/friend." How can we check if this friend is on the up & up?
- Margaret
ANSWER (Detective Ed Lum):
Well, you can ask the hairdresser or the appointed attorney for an accounting of everything. If your sister is unable to do that herself because of capacity issues, then you can usually go through a civil court process and ask for what is commonly referred to as "a passing of the accounts." If it goes to court, it can be tied up for months or longer and there needs to be some evidence of wrong-doing before police can investigate. And it's not really a matter of checking the person's character, as long as they are fulfilling their role appropriately as power of attorney.
