We offer and advertise will and Power of Attorney (POA) legal services. We often get questions about other people's wills or about executors who are handling the estate's administration because of our advertising.
One question that sometimes comes up is what happens when a person who believes they should be a beneficiary is not named in the will. In most cases, the person calling will be a child who was excluded from their parent's will.
Unfortunately for the child, a parent is not required to include their children in their will. A child does not have a right to a parent's property or estate. While this may appear harsh, the law does not want to dictate to someone how that person's assets should be distributed. This is based on the fundamental value of common law, that neither the state nor the law should tell people how to manage their personal affairs.
A parent may have good reasons to exclude one or several children from their will. In the end, the reason for excluding children is not relevant. The will is legal as long as the parent is legally capable of making the decision and the parent is not coerced while making the decision.
However, like everything else under the law, some circumstances exist that could undermine the will's validity:
While this may seem straightforward to most, it is not for people who struggle with legal capacity.
The best example I can give is when someone with Alzheimer's disease attempts to provide us with instructions to prepare a will. From time to time, a concerned child will bring their parent to our office, hoping we will prepare a will. If the person is too far gone, they won't be able to tell us what they own. He/she may even have trouble providing the names of their children. If we determine, in an interview, that a person lacks the capacity to make a will, we cannot draft one.
If someone creates or signs a will and lacks the legal capacity to understand what they created and signed, a court will likely find the document invalid. So, if you believe that your parent was not legally capable of understanding the will when they signed, you may have grounds to have the will declared invalid.
At law, we refer to this as "undue influence." A person can also challenge a will if someone else improperly influenced the testator. The person challenging the will must satisfy the court that sufficient proof exists that someone coerced the testator. The proof required is more than simple influence. This happens all the time.
Parents often feel an obligation to help their children. In a will, parents may prefer one child over another because of their personal circumstances. This reality does not necessarily amount to coercion. But, if a parent relies entirely on one child, and that child uses that dependence to influence the parent, a court may conclude that the decision to leave everything to that child resulted from a fear of being abandoned. If that's the case, a court may find the will invalid.
Section 2 of the act states the following:
2(1) If it appears to the court that a dependent is in financial need, the court, on application by or on behalf of the dependent, may order that reasonable provision be made out of the estate of the deceased for the maintenance and support of the dependent.
So if a parent does not include a "dependent child" in their will, then the child, or someone on their behalf, can apply to the court for a ruling forcing the estate to provide a reasonable sum. If the applicant satisfies the court that the child is indeed a "dependent child," it will not declare the will invalid. However, the court will make provisions for the dependent child out of the estate funds.
A person can also challenge a will based on fraud, although fraud is more difficult to prove than coercion. Finally, a person can also challenge a will because the testator did not know what they were signing or the contents of the document. However, this will prove difficult if the will is properly signed and witnessed.
So the short answer is that a child left out of a parent's Will cannot challenge the will on that basis. A will can only be found invalid in the scenarios discussed above. If you suspect that one of these scenarios exist, you should meet with a lawyer to discuss it. Be warned though — you will be required to initiate court action if you want to pursue any of these. As discussed in a previous post, court cases can be very stressful and expensive.
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).
We offer clear, understandable wills and estate planning in Winnipeg, Manitoba. Our mission is to make law more accessible to Canadians.
