What to do if you’ve been left out of the will

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A death in the family triggers all sorts of emotions. For those who are left out of the will, however, disappointment and betrayal may be added to the list.

It’s natural for spouses, children and other potential heirs to want to take action to be awarded a share of the estate or correct an injustice.

Margaret O’Sullivan, managing partner at O’Sullivan Estate Lawyers in Toronto, and Nick Davies, lawyer with MacLean Law in Vancouver, offer tips on what a claimant can do.

Please note: Legislation varies from province to province, so anyone considering challenging a will or looking for a redistribution of an estate should seek legal advice.

Get a copy of the will

In Ontario, a person not named as a beneficiary isn’t entitled to receive a copy of the will or notice of the application for probate, says O’Sullivan.

So if you think you should have been named and don’t receive notice, you could just ask for a copy from other members of the family or whoever you think might be the executor, she says.

Once a will has been probated it is a public document. “Anyone can apply to get a copy of the probate, which would include the will. As well, you have the ability to get the court file … which will include the value of the estate.”

Seek as much documentary evidence as you can

“Documentary evidence is particularly important, and that evidence seems to disappear when a dispute arises,” says Davies. He suggests claimants seek the will, any bank statements and communications including emails relative to the will-maker’s plans for the estate.

Ask for a share

Litigation is time consuming and expensive, so why not talk to other beneficiaries? When one sibling is left out, other siblings may agree the parent was acting unfairly, says O’Sullivan.

“I have seen situations that, notwithstanding that the parent did not include a child, the parties among themselves were able to reach an agreement on the basis of ‘we’re going to resolve this ourselves because we don’t like the result.’”

Determine the basis of a claim if you are a spouse or child

In Canada no one has a right to be named in a will. But in Ontario, a married spouse can make an equalization claim under the Family Law Act if he or she doesn’t like the benefits under the will. Adult children do not have a claim, says O’Sullivan.

However, a person can potentially make a claim for dependent’s relief. If a family member within a certain relationship to the deceased was being supported by the testator, they can make a claim against the estate for support, says O’Sullivan.

British Columbia law is different

The Wills, Estates and Succession Act (WESA) in B.C. says that if the will-maker has not made adequate provision for spouse or children, the court can change the way the estate has been distributed.

Adult children are included in that provision, says Davies. The definition of spouse under WESA overlaps with the province’s Family Law Act in terms of division of assets, he adds.

The judge, in deciding what would be just and equitable, can look at the size of the estate, other beneficiaries, the reasonable expectations of the claimant, how well off the claimant is and why the claimant was excluded, says Davies.

“A claimant who has a very effective counsel, who has put together a very well-constructed case that is sound on the law and has a firm evidentiary basis, will do better than somebody who has a less effective counsel,” he says.

Basis of your claim if you’re not a spouse or child

Another area of law that varies from province to province is the concept of trusts that arise by “operation of law,” says Davies. “Was there any other way, that, based on the facts, the deceased has an obligation to the claimant even though the claimant was not a child or spouse of the deceased?”

Davies cites the example of a nephew who is asked to work on the family farm for little pay but promised the farm will be passed to him on the death of the owner. Davies says the argument would be that a trust relationship existed that created an obligation to transfer the farm to the nephew.

Those cases are difficult to prove without evidence, such as emails or letters or witnesses to conversations between the will maker and nephew, says Davies.

Challenge the making of the will

What if the way the will was created is suspicious? A will can be challenged because the will-maker was not competent to create the will or because he or she was under undue influence.

O’Sullivan says that in the case of suspicious circumstances, a potential claimant should raise an objection if possible before probate is issued because it’s tougher to reverse the will after probate.

Undue influence is a very high test, says O’Sullivan, because the person doing the challenging must prove that the will doesn’t reflect the intentions of the testator because so much pressure has been applied by another party.

Davies warns that having a will struck down can result in unintended consequences. If there is no previous will to fall back on, the judge could decide to distribute the estate on intestacy (no valid will), which could broaden the pool of individuals with a potential claim against the estate.

Decide whether a challenge is worth the cost

O’Sullivan estimates that less than 5 per cent of cases go to trial, and Davies estimates it at about 10 per cent. Cases are more likely to be resolved with mediation.

Depending on the complexity of the case, O’Sullivan says, clients can count on two or three years in many situations before resolution. Sometimes it’s longer.

Davies adds that potential claimants should perform a cost-benefit analysis in these cases.

“I have a spreadsheet model I’ve developed, and at any time during the proceedings I can say, ‘If you persist … and this goes all the way to trial, it’s going to cost you x number of dollars, and that includes preparation time, trial time, examination for discovery, transcripts, disbursements… You’re going to spend another $300,000. You’re only $200,000 away from where we think we ought to be, so why not settle and avoid the legal fees and the personal stress?”