It’s the stuff of classic murder mysteries. The family, hushed and anxious, gathers around the desk as the white-haired lawyer cracks the seal. Then, a gasp as the contents are read: “To my children, not a penny.” Chaos ensues.
People do still write children out of their wills, and sometimes for good reasons. But if the wish doesn’t seem justifiable when the will is read, it may not be carried out.
“The biggest problem is that when this issue comes up, you’re dead and buried, so you’re no longer around to clarify your reasons for doing it,” says Cindy David, president of Cindy David Financial Group Ltd. in Vancouver. “Very often, when these things come before a judge, what we’re trying to get at is the intent, so any time we can clarify intent, that’s a good thing.”
A formal written expression of wishes is a valuable adjunct to the will in such situations, she says. “And I tell clients to do that even if they’re not disinheriting a child.”
Many factors may influence a parent to leave their child out of the will. Most often, it’s done because of an estrangement, when the parent no longer feels that the child is still a member of the family. In some cases, it’s about an heir’s spouse or partner.
“People get into relationships with people their parents don’t like, so they’re reluctant to put their equity into the hands of a third party whom they don’t trust,” says David. She mentions one case that involved a child conceived outside the marriage: “There were concerns that this child might rear his or her head at just the right time.”
“I think you have to distinguish between disinheriting your child and simply treating your children differently,” says Tim Cestnick, co-founder and CEO of Our Family Office in Toronto. “Maybe one child received a lot of money during their lifetime, maybe one took care of their parents when they were sick or elderly.”
Such a decision can be very hard on families, says Cestnick: “I’ve seen situations where parents have caused great harm or hurt because they got frustrated with someone, and then they pass away, and one child gets something very different from the others.
“That’s not something that should be done lightly,” he says, “and I would advise people to get wise counsel from their spouses, their advisors and their lawyers, and be prepared to explain their rationale for it.”
This is not the same as cases in which a child is physically, intellectually or psychologically unable to manage their money. Disability, illness, substance use or merely poor money-management skills are all sound reasons to make unequal dispensations to siblings, or to appoint a trustee to handle the money instead of leaving it directly to the child.
There are alternatives to cutting a child completely out of the will. David suggests bestowing at least a token on the child in question, to send the message that “you are a family member, but I don’t want to give you your third or your half. You can give that gift in your will, or you can buy a separate life-insurance policy that is dedicated to that gift.”
Leaving nothing at all is a dramatic statement. “Zero is a slap in the face; it’s almost like leaving a penny for a tip,” she says. To leave at least a modest gift is “not a foolproof plan, but it takes the sting away from the slap.”
The hurt can also be lessened by preparing the family in advance, but that doesn’t always happen, says Pearl: “It’s often a surprise. It makes it much more difficult for the remaining beneficiaries, but one of the main reasons they’ve disinherited the child is that they don’t communicate anymore.”
If bad feelings are not laid to rest before the testator dies, the will may be challenged and varied, or voided completely by the courts. Many people believe that they have a legal right to do whatever they want with their money, but this is not necessarily so.
“Depending on where you are in the country, there are different estate laws,” Cestnick says. The broad expectation is that a parent will provide for their spouse and children – especially dependent children – “so if you choose to leave any of those people out of your will you could have a problem.”
Even Ontario, among the most permissive provinces, will vary a will that fails to provide for dependent children, and it gives its judges the power to void a will that “offends public policy,” Cestnick notes. This concept might be brought into play to challenge a will that exclusively bestows or withholds money for a reason related to a Charter-protected equality right such as race, religion or disability.
Quebec’s civil law upholds forced heirship, which essentially forces a testator to leave a proportion of their estate to their spouse and children. British Columbia’s Wills, Estates and Succession Act gives judges broad authority to vary wills.
“If you are intending to treat your children differently in your will, it’s a good idea to get advice from a lawyer in your province,” says Cestnick.
“Often, an estate settlement can really cause family breakdown,” David says. “My best advice is to do as much as you can while you’re alive to relieve the pain and suffering that can be caused by dispute.”
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