Category: WILL CHALLENGES

When a person passes away, one of the first things to be done is to determine who has been made executor of the estate. The executor is responsible for administering the estate, but this is not always a smooth process. Wills are complex legal documents. A good will should be clear and unambiguous, but this is not always the case. Sometimes, there may have been a mistake in the text of a will or a change in circumstances that arose after the will was originally drafted. In either case, there are ways for beneficiaries who think they’ve been left out of a will to challenge it successfully before probate court judges. Here’s what you need to know about how challenging a will works.

A will does not have to be fair

Before challenging a will, really think about the reason you want to challenge it. It’s important to be clear on this to help your legal counsel determine the best course of action – or if there is any course of action for relief available at all. There are specific grounds on which to challenge a will in Ontario. Individuals who simply find that a will is unfair, however, may be out of luck. Testamentary freedom dictates that the person making the will, the testator, is able to leave their estate to whomever they wish.

You can’t just challenge any will

You can challenge a will only if you have standing. Standing means that you are someone with rights affected. In some jurisdictions, this may be stricter, but in Ontario, the Rules of Civil Procedure essentially allow anyone with a financial interest in the estate to contest the validity of a will. This is set out in rule 75.01, which reads:

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

The grounds on which you can challenge a will in Ontario

There are a few reasons why an individual may be successful in their will challenge. For instance, if someone exercised undue influence to take advantage of the testator while the will was being prepared, that may be grounds to declare the will invalid. In other instances, the deceased may have lacked capacity at the time of making the will, which puts into question its reliability and if it was truly a reflection of the testator’s desires.

The testator may not have been influenced by another person or lacked capacity, but the terms in their will may be unclear and ambiguous. A judge can sometimes interpret these provisions into something that makes sense, but where this is not possible the particular provision might be declared invalid. Other common grounds to challenge a will in Ontario include mistake, fraud and public policy reasons.

The most common grounds to challenge a will in Ontario are incapacity and undue influence

In Ontario, the most common grounds for which individuals tend to challenge wills are undue influence and incapacity. Undue influence is when the testator is influenced by another party in the drafting of their will to the point that the final will does not truly reflect the testator’s intention. Incapacity means that the testator was unable to be independent and manage their own affairs at the time of drafting the will.

What is the first step for challenging a will?

Ideally, a will challenge will commence before the estate is administered. Individuals interested in challenging a will should file a notice of objection with the Estates Registrar as soon as possible after the testator’s death. This will effectively halt the estate proceedings until the matter of the will challenge has been taken care of.

This is not to say that it is not possible to challenge a will after the estate has been administered. Sometimes this is required because otherwise, you might not know what the content of the will is to challenge. In this instance, you would begin the process of challenging the will by filing a notice of application.

You have two years to challenge a will in Ontario

As with many things in law, there is a limitation period for individuals to contest the validity of wills. In Ontario, that limitation period is two years from the date the potential challenger discovered their case. Note that this is not two years after the death of the testator. This is because not all will challenges will be apparent right away. The limitation period leaves time to ensure potential challengers can get their affairs in order, but it also limits the ability to challenge so that the estate does not need to deal with claims indefinitely.

Whoever challenges the will may be at risk of paying costs

Remember that legal disputes can be costly, and if you are unsuccessful in your will challenge you may be liable for your own legal costs as well as the estate’s legal costs. This is why it is important to ensure you have a good, solid case before proceeding. Consider obtaining legal representation to ensure you have a case worth pursuing. Getting a legal opinion earlier can help save you time and money down the line in the event your case has no merit.

Assess Your Case for Challenging a Will with the Estates Lawyers at Derfel Estate Law in Toronto

At Derfel Estate Law, we understand how difficult it can be to handle the affairs of a loved one’s estate after they have passed. Our experienced team of estate lawyers is always up to date on estate administration requirements and can assist with will challenges. We are committed to providing our clients with personalized attention, which means we will work closely with you through the duration of your case and keep you informed at every step of the way. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.

The recently issued decision of the Court of Appeal of Ontario (ONCA) in McGrath v. Joy, confirmed that a suicide note could be a valid will in Ontario

In the decision, the ONCA reviewed the decision of the Superior Court of Justice, which had held that even though the suicide note met the technical requirements for a holograph will, the testator did not have the requisite capacity to make the will as he was under the influence of drugs and alcohol. The ONCA overturned the lower court’s decision after a thorough review of the common law requirements for a finding of testamentary capacity.

Suicide note expresses wishes

The day Mr. Joseph Joy committed suicide, he wrote a suicide note that expressed his testamentary wishes and met the technical requirements for a holographic will. The day before his suicide, Mr. Joy had consumed drugs and alcohol and called people sounding drunk on the phone.

In his suicide note, Mr. Joy renounced his previous will, outlined how he wanted his possessions distributed, and even made a note about his wishes for his cremation and ashes. As the note was written entirely by hand and signed, all the parties and the lower court Justice agreed that it met the requirements of a holograph will.

Holograph will requirements

A Holograph Will is a will that is written entirely by hand and then signed by an individual. In the context of wills, the individual writing a will is referred to as a testator. In order to be considered valid, the entire will must be written entirely by the testator. It is important to recognize that one can not type up a will, print it out, and then sign it. For a typed will to be valid, it needs to be signed in front of two witnesses. The benefit of a holograph will is that it does not require witnesses and can be used in an emergency.

The Succession Law Reform Act outlines the requirements for a Holograph will. Paragraph 6 of the SLRA sets out the following rule:

“A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”

Rule 75 of the Ontario Rules of Civil Procedure sets out the process for Contentious Proceedings, which was properly followed.

Was the will written while intoxicated?

Despite the details in the suicide note, the lower court held that Mr. Joy did not have testamentary capacity when he wrote the will because he was consumed alcohol, smoked hash cigarettes, and was described as sounding drunk by witnesses the day before his suicide. The trial judge also took into account that Mr. Joy wrote his note in a sloppy handwritten and that he includes a “profanity-laced diatribe” against his estranged spouse, Joanne.

Though the ONCA ultimately found that the trial judge erred in his application of the law to the facts, the appeal court confirmed that the trial judge had referenced the correct common law requirements for a finding of testamentary capacity. The ONCA applied the same requirements and found that Mr. Joy was a chronic drug and alcohol user and that his use the day prior to his suicide did not impact his testamentary capacity; further, the ONCA found that he was a generally sloppy writer, as evidenced by other samples of his writing and that the trial judge erred in relying on these two factors to make their ruling.

What is testamentary capacity?

Testamentary capacity is defined as “the capacity in executing a will to understand the nature and extent of one’s property and how one is disposing of it and to recognize the natural objects of one’s bounty”.

The Supreme Court of Canada issued the seminal Canadian decision on testamentary capacity in 1902 in its decision in Skinner v. Farquharson (1902), 32 S.C.R. 58, in reliance on Banks v. Goodfellow, and have been applied ever since.

A more recent decision of the ONCA in Hall v. Bennett Estate confirmed that a testator must have a “sound disposing of mind” and that in order to have a sound disposing of mindset a testator must meet the following requirements:

1. The testator must understand the nature and effect of a will;

1. The testator must recollect the nature and extent of his or her property;
2. The testator must understand the extent of what he or she is giving under the will;
3. The testator must remember the persons that he or she might be expected to benefit under his or her will; and
4. The testator where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.

Testamentary capacity and drug and alcohol use

In the Joy decision, the ONCA confirmed that it is an “error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs” and that rather, a court should consider whether a testator “suffers from a disorder or condition that may impact on his or her testamentary capacity”. What that means is that courts should not start “from the premise that a pattern of very heavy drinking, on a daily basis, suggest[s] testamentary incapacity” but rather consider evidence of the effect that drug and alcohol had on a testator’s testamentary capacity vis-a-vis the above five requirements.

Overall, while holographic wills are widely accepted and sometimes, an easier choice for a testator, it is important to keep in mind that holographic will are possibly more prone to litigation due to the lack of witnesses and other complicating factors.

Contact Toronto Estate Lawyers at Derfel Estate Law for Will Challenges

At Derfel Estate Law, our experienced team of estate lawyers are always up to date on will challenges, estate administration requirements and can assist in acting as an Estate Trustee. Contact us by phone at 416-847-3580 or reach us online to discuss your estate litigation needs.

In a recent decision, the Ontario Superior Court refused to order the production of an applicant’s psychiatric records when he challenged his father’s testamentary capacity. The respondent sought production of the records in order to demonstrate that the applicant had knowledge of the existence of the will in question and missed the limitation period for filing a claim.

Applicant Challenges Will on the Basis of Undue Influence and Capacity

In Kinnear v. Kinnear, the deceased testator, Russell Barr Kinnear (the “Deceased”), executed a will (the “Will) in August 2015 appointing his son, Christopher (the “Respondent”), as estate trustee and sole beneficiary of his estate and Christopher’s wife as his attorney for property and personal care. At the time of the Deceased’s death, the applicant’s brother, Russell (the “Applicant”), and his daughter had been living with the Deceased for several years and had been caring for the Deceased prior to his death.

The Respondent’s wife had arranged the Deceased’s consultation with a lawyer to prepare the will, drove the Deceased to the appointments with the lawyer and participated in the meeting in which the Deceased gave his instructions to the lawyer.

The Applicant challenged the will on the basis of undue influence and on the grounds that the Deceased lacked testamentary capacity when he made the will.

The Deceased had previously suffered a severe brain injury and in a report by a physician dated September 2015 the Deceased scored 13/30 on a mini-mental state examination and was determined incompetent to make financial decisions.

In June 2016, the Applicant wrote an email to the Respondent mentioning his psychiatrist’s name and claimed their father wanted to make changes regarding his will.

Respondent Sought Order for Production of Medical Records

The Respondent sought an order for production of the Applicant’s medical records and files in possession of his psychiatrist, arguing that the psychiatric records may include evidence that would support his position that the Applicant’s challenge to the will was statute-barred as it was filed beyond the applicable two-year limitation period, which started to run from the date of the Deceased’s death.

In cross-examining both the Applicant and his psychiatrists refused to answer questions about the email during the cross-examination stage. The psychiatrist signed Form 15 under the Mental Health Act, claiming that disclosing, transmitting, or examining the psychiatric records would likely harm the applicant’s treatment or recovery.

Court Considers Psychiatric Records

The Court considered whether the production of the Applicant’s psychiatric records should be made in the interests of justice. The Court noted that it is entitled to make an order for production for inspection of a document that is in the possession of a non-party and is not privileged, under if: a) the document is relevant to a material issue in the action; and b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

The Requirements to Support a Claim for Privilege

The Supreme Court of Canada has set out four necessary requirements to support a claim for privilege over communications between a patient and their psychiatrist:

1. the communication at issue originated in a confidence that it would not be disclosed
2. the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties
3. the relation must be one which in the opinion of the community ought to be sedulously fostered
4. the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation

In considering the evidence of the psychiatrist, the Court found that the first three requirements were met. The psychiatrist “confirmed that confidentiality is the foundation of the relationship between a psychiatrist and his or her patient and must be fostered to create an environment in which proper diagnosis and proper treatment can occur.”

In considering the fourth requirement, the Court found that the Respondent did not produce any evidence to show that the Applicant’s psychiatric records include discussions pertaining to the Deceased and his estate planning generally, or the will specifically. The Respondent also failed to show that the psychiatric records were likely to include such information.

The Court found that the Respondents could obtain information in support of their alleged limitation period defence from other sources such as evidence of the drafting solicitor, their own email exchange with the Applicant and other evidence provided by the Applicant. Reliance on sources other than psychiatric records would protect the Applicant’s privacy responding to the confidential psychiatric records. It further noted that it would address the risks raised by the Applicant’s psychiatrist of the potential serious harm to Applicant’s mental health and future treatment, which could arise as a consequence of permitting the Respondent access to the psychiatric records.

Should the Applicant’s Privacy Be Protected?

In considering the evidence, the Court found the Applicant’s privacy interest to be compelling and found there to be persuasive reasons for protecting the psychiatric records in this case.

If production were ordered, others seeking psychiatric attention may feel less secure about whether their medical records would, in fact, be kept confidential. This insecurity could lead to less open communication with their mental health professionals and could prove detrimental to their treatment. Given the essential importance of confidentiality to the psychiatric relationship and the Applicant’s relationship with the psychiatrist that spanned more than 20 years, the Court denied the request to order production of the psychiatric records.

Most notably, the Court considered the future impact of ordering production of psychiatric records in cases such as these, stating:

“…an order for production in a case such as this could have an effect beyond this case. If production were ordered, others seeking psychiatric attention may feel less secure about whether their medical records would, in fact, be kept confidential. This insecurity could lead to less open communications with their mental health professionals and could prove detrimental to their treatment”

Contact Toronto Estate Lawyers at Derfel Estate Law for Will Challenges

At Derfel Estate Law, our experienced team of estate lawyers are always up to date on estate litigation cases and can assist in contesting a will. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.

Back in September we blogged about recent changes to estate law in Ontario. One of the more interesting changes was the introduction of the ability for the courts to “cure” invalid wills. Questions around the validity of a will due to administrative issues, such as the lack of a signature or witnesses’ signatures. Courts have now been given the authority to fix, or “cure” wills that might otherwise be found as invalid. In our September blog post we noted that it remained to be seen how far courts would go in fixing a will. A recent decision from British Columbia, sheds some light on what we might expect in Ontario.

Testator dies without having signed will

The testator had been preparing to visit her lawyer in March 2020 in order to sign a new will. However, the appointment was cancelled because COVID-19 had begun to shut down most parts of everyday life. In this case, the testator’s will was drafted, and all that remained was for it to be signed before two witnesses. Unfortunately, the testator died before she was able to sign the will.

Following the testator’s death, the lawyer who prepared her previous will (“JT”) challenged it. That will left her estate to her husband, and in the event that he predeceased her, left her estate to a charity. The new will stipulated that her estate be left to her nephew and his partner (“the beneficiaries”). They were the respondents in the matter. JT asked the court for direction as to whether the new will should be executed under the Wills, Estates and Succession Act. The beneficiaries submit that the will should stand, while the charity maintains the newest will was substantially invalid and cannot be cured under the Wills, Estate and Succession Act.

The requirements for a legal will

The court explained that the Wills, Estate and Succession Act sets out three requirements that must be met for a will to be valid. They are:

1. The will is in writing
2. The will is signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
3. The will is signed by two or more witnesses in the presence of the will-maker

In this case, the will clearly did not meet the second or third requirements. Normally this would mean that the will cannot be executed. However, like in Ontario, BC’s Wills, Estate and Succession Act allows for courts to cure deficiencies of non-compliant wills.

The court began its analysis by determining that the will is indeed authentic. This was not at issue in the trial, so it quickly moved onto the writing of the will and the testator’s capacity at the time it was drafted. The court heard from the lawyer who drafted it. He said he had no question about capacity, noting she told him she “spoils” her nieces and nephews. He also told the court the testator instructed that “no charities” be included in her will.

Testator intended to sign her will

The court was satisfied that the will was written as per the testator’s instructions. She had every intention to sign the will but was prevented from doing so for reasons outside of her control.

The court heard evidence that the testator did not leave her home for any reason other than medical appointments once the pandemic was underway. In addition, the court was satisfied that the testator had taken the necessary steps to put the will into place in the weeks leading up to the pandemic and that she would have completed the last necessary steps had she been able to.

Because of this, the court found that the testator’s failure to execute the will does not undermine her testamentary intentions, and as such, the will should stand.

Contact Derfel Estate Law for matters related to will challenges

At Derfel Estate Law, our experienced estate lawyers regularly represent clients on all types of estate litigation, including the challenging of wills. Contact us by phone at 416-847-3580 or reach us online in the event that you are considering filing an application to challenge a will. Our team will help you determine whether you are eligible to bring such a claim.

Having a proper will in place not only provides you with the security in knowing that your estate will be distributed as you intended in the event of your death, but it can also give your loved one’s security in knowing that they might be looked after should you pass away. But what happens when a will stipulates that an individual will receive a piece of property, such as a house, but that property is no longer owned by the deceased when they die? Is the would-be beneficiary entitled to anything at all? This was recently discussed in a decision from the Court of Appeal of Newfoundland and Labrador.

Will leaves house to niece

The deceased had two nieces, “MH” and “KB”, who were both named as beneficiaries in her will. The will stipulated that KB would be bequeathed the deceased’s home, while MH would receive the remainder of the estate.

However, the deceased was diagnosed with dementia in 2007. Towards the end of that year she moved from her home into a private care home. She stayed in the care home until her death in 2011. While she was in the care home, KB and MH helped sell the home. They deposited the proceeds from the sale into the deceased’s bank account. At the time the deceased passed away, her estate consisted exclusively of cash held in her bank account.

Sister seeks payment equal to value of home

KB realized that she stood to receive nothing from the estate. Her and MH met with the estate’s executor, who advised the parties to get independent legal advice, but suggested that KB should receive a cash payout equal to the proceeds from the sale of the home ($145,780) with MH inheriting the remainder ($30,238). MH was not satisfied with that proposal, but the sisters met privately and agreed that MH would pay KB $40,000. They told the executor the estate could be released, but did not tell him the details of their arrangement.

Unfortunately for KB, MH never did pay her sister the $40,000. It was later renegotiated to $30,000, but that was not paid either. This led to the deterioration of the sisters’ relationship.

Is KB entitled to anything?

One of the issues before the Court of Appeal was whether KB was entitled to anything as a result of the home being sold, leaving her essentially cut out of the will. This type of situation is addressed by what is known as the law of ademption, which was summarized by the court as follows.

“The law of ademption provides that if the property which is the subject of a specific bequest in a will does not exist in a testator’s estate at the time of the testator’s death, the bequest adeems (or fails), and the intended beneficiary receives nothing in respect of that bequest.”

This case should serve as a reminder that if family members of loved ones are aware of how they are addressed in a will, it would serve all involved to take the time to revisit a will in the event that something like the sale of a home substantially changes how the estate will be distributed. Doing so can help avoid the cost of estate litigation as well as the deterioration of a family relationship as we saw here.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

One of the primary reasons someone might make a will is because they want to be in control of what happens to their estate when they die. This can be interpreted as making sure that specific people are included in a will, but on the opposite side of the coin, it can also mean that others are specifically omitted from a will. A question that occasionally makes its way to the courts is whether a parent has any sort of obligation to include their children in their wills. While courts have ruled on the idea of “testamentary freedom,” which means people should be free to distribute their estate as they see fit, questions about whether a parent have an obligation to leave something to their children still come up from time to time. A recent decision from the Ontario Superior Court of Justice is one such example.

Mother leaves entire estate to one of her children

The parties to the dispute were the two adopted children of the deceased. The deceased’s son, “RS” was left everything in the deceased’s 2011 will. Her daughter, “SS” contested the will on four grounds, stating:

1) The Testator lacked the requisite testamentary capacity to execute the 2011 Will;

2) The Plaintiff unduly influenced the Testator to execute the 2011 Will;

3) The Testator did not have knowledge of, and approve of, the contents of the 2011 Will; and

4) The Testator executed a new will in 2014, thereby revoking the 2011 Will.

The idea of a moral obligation is not cemented in any of these grounds, though after determining that the will was valid and could not be overturned on any of the grounds cited by SS, the court took a moment to comment on the idea of moral obligations, as it was something commented on by SS.

The court re-establishes testamentary freedom

The court said it would be worth briefly addressing the idea of a moral obligation, as it was something SS mentioned over the course of the trial, particularly around the idea that the mother wished to proactively exclude her from the will.

The court quoted a 1990 Ontario Court of Appeal decision in which it was held that, “The freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law.”

In addition, the Supreme Court of Canada ruled on the subject in 1994, writing,

“The freedom to dispose of her property as a testator wishes has a simple but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator.”

It seems that even though it may feel like there should be a moral obligation for a parent to ensure all of their children receive a piece of their estate, the law does not cement any real obligation.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

It might seem that simply having a will in place is a sure way to avoid your estate being subject to litigation after you pass away. After all, one of the primary reasons someone would draft a will is to limit the likelihood of estate litigation after their deaths. However, as we can see in a recent decision from the Ontario Superior Court of Justice, even a small estate with a relatively small number of potential beneficiaries can be subject to disagreements about the validity of a will.

Mother dies with two wills in place

The parties involved are immediate family members. The deceased passed away on June 24, 2020. The son applied for a certificate of appointment of estate trustee with a will, but the husband and daughter objected, disputing the wills.

Both of the wills were dated October 31, 2018. The father and daughter allege that she lacked testamentary capacity when she made the wills and did not have the knowledge to approve of their contents, that they were made under suspicious circumstances, and were procured by undue influence.

The son said that his father and sister have not met the necessary evidentiary threshold to support their position and that even if they have, the result should be that the lawyer who prepared them is made to provide testimony, not that a third party become involved to help reach a resolution.

Has the threshold requirement been met?

The court looked at the last few years of the deceased’s life, noting that she had to deal with serious and debilitating medical problems that required daily care and assistance. Her husband provided much of this. Her and the father had made “mirror wills” in 2008, but the father later found out from their son that she had made another will in June 2020 which limited the father’s entitlement to a $250,000 bequest.

The court stated that the parties lived a middle-class lifestyle until the deceased’s parents died. They were quite wealthy and left her millions of dollars.

The court was given evidence that the deceased’s son became heavily involved in her life during her last few years, exhibiting controlling behaviour.

The son did not provide an affidavit to rebut his father and sister’s allegations, though he did provide testimony from the mother’s financial advisor, who stated that the mother “conversed freely and with an apparent good understanding of her affairs.” An accountant also testified that the son was not “in any way acting improperly or exerting any undue influence” over his mother.

The court found that the son’s evidence supports the validity of the wills, but does not go any further, stating “It is certainly not determinative and is far from the kind of cogent evidence that would cause me to effectively end the objectors’ challenge to the wills at this preliminary stage of the litigation.”

The court did not agree that all of the father and daughter’s requests were necessary, including a request for medical and hospital records. The court also agreed with the son that the estate seemed relatively uncomplicated. However, the court found the son to be not entirely forthcoming with information about the estate’s assets.

The court seemed to strike some sort of middle ground, ordering that a third party work with the parties as an estate trustee to receive comprehensive information about the financial circumstances of the estate.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

The story of a Halifax woman’s attempts to receive her deceased husband’s RRSP savings has highlighted the difficulties in making changes to what happens to someone’s estate in the event that they die without a will that may or may not accurately reflect their wishes. The story, which was recently reported by the CBC, involves an RRSP account that was designated to go to the deceased’s mother in the event of his death, leaving his wife and child without access to his savings.

A brief struggle with cancer

The deceased went to the emergency room in 2018, complaining that he wasn’t feeling well. He was ultimately diagnosed with stomach cancer, which had already spread to his lungs. He died just three weeks later, leaving behind a wife and a 13-year old daughter.

A terrible surprise

The mother, struggling with the grief of losing her husband, soon learned that his RRSP, which was worth $685,000, listed his mother as its beneficiary. This means that even though his will stated he wanted to leave everything to the mother, the funds in the RRSP were not hers to claim. The mother explained that when her husband first opened his RRSP he was young and unmarried, and so he listed his mother as the beneficiary. She thinks he simply forgot about it, adding that the RRSP was listed amongst their assets in his will.

To make matters worse, while the RRSP wouldn’t be going to the estate, the estate would be on the hook for the tax bill, leaving it with a tax burden of over $300,000. Fortunately for the deceased’s family, he had an insurance policy that covered the tax obligations of the estate.

Can the will override the RRSP beneficiary?

The mother hired a lawyer who told the CBC, “We took a look at whether his will would change the designation he had left in his RRSP and we, unfortunately, came to the conclusion that it wouldn’t fix it.” Her lawyer added that such situations are common and that people often neglect to update their documents when life situations change, such as the addition of a child or a spouse.

Differences between RRSPs and Pensions

The story explained that in Nova Scotia, pensions are registered in the province and fall under the Pensions Benefits Act. Under the Act, when a pension holder dies, their pension funds automatically go to their spouse, even if another beneficiary is listed. A friend of the family, who is also a consulting actuary with a specialty in pensions, told the CBC, “for one spouse to be able to designate a huge chunk of their estate to somebody outside of the marriage, that would be pretty inconsistent with the rest of the way we treat marriage and partnerships.”

The wife is hoping to change the law, but the CBC reported the province said it was a federal issue, while the CRA told CBC it was covered by provincial legislation.

Derfel Estate Law is a boutique estate litigation law firm. Our practice focuses on all aspects of estate disputes, as well as estate administration and probate. We act for beneficiaries, guardians, executors, trustees, and others. Our estate lawyers can help with a wide range of estate litigation matters. To learn more or to schedule a consultation, please call us at 416-847-3580 or contact us online.

People often put together estate plans while they are alive in order to ensure that their property goes to the people they want it to, and conversely, to ensure that property does not go to people who they do not want it to go to. In a recent situation before the Supreme Court of British Columbia, twins who had been disinherited by their father challenged his will, stating they had a right to his estate after he died.

Father has little contact with children

The father and the mother were involved in a dating relationship during which the mother became pregnant. The father had raised the possibility of terminating the pregnancy, which was something the mother did not want to do. The mother gave birth to twins in 1986, and began to raise them on her own without any involvement from the father.

The mother and twins moved to the North West Territories in 1986, but died in 1990, when the children were just four years old. She left a will which stated a family she had developed a close friendship with would be guardians of the children in the event of her death.

The children’s maternal grandmother and the father sought custody of the children, but the mother’s wishes in her will were upheld. The father was granted scheduled opportunities to visit the children, but with one exception, didn’t have any contact with them following the custody hearing.

Father’s will disinherits the children

The father prepared a will in 1995 (“the first will”) which named his sister as his beneficiary, explicitly disinheriting the children, who he referred to as his “illegitimate children.” His will stated,

I have no desire to benefit my illegitimate children even if my sister… predeceases me, as they are well taken care of and I have absolutely no contact or association with them.

He prepared a second will in 2006, again explicitly disinheriting his children. It went further, though, tasking his new beneficiaries (two friends) to “aggressively block” any attempt by the children to vary his will.

When the father died, his estate was worth close to $900,000. The children challenged the father’s wills, stating he owes a moral obligation to provide for them in his second will.

Did the father have a moral obligation to the children?

The court referred to several decisions from British Columbia before stating that a parent’s moral obligation towards their children starts on the day they are born, with that responsibility diminishing over time.

The court found that the father failed to meet that moral obligation, writing,

“The fact that he made it so clear in the First Will and the Second Will that the Twins were illegitimate, that he wanted no part of his estate to go to them, and instructed his executors to fight any attempt by them to vary his will, speaks volumes about his attitude towards them and his misguided and ill-conceived attempt to punish them for matters beyond their control. Despite being granted very generous parenting time, he failed and/or neglected to exercise any parenting time or to have anything further to do with his own children.”

The court ruled that the will should be varied, giving the children 70% of the father’s estate, split equally between them.

It should be noted that the laws in Ontario are not the same as those in British Columbia. In Ontario, a testator’s freedom to distribute their estate as they choose is more difficult to override in the courts, though it can happen on occasion.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.