Estates: Feeling left out

Dad left me out of his will. What should I do?

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by

From the June 2009 issue of the magazine.

110

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There are many reasons why you may not be in dad’s will. Sure, he may have left you out of it intentionally, but there could be several other reasons as well. Maybe he had some of the early signs of dementia and didn’t remember your name when he was drawing up his will. Or maybe he was coerced by a sibling to cut you out because you haven’t called him in 20 years. Whatever the reason, you may be legitimately entitled to some of the assets from the estate. Here are some tips on how you should proceed if you want to contest your father’s will.

Get a copy of the will

Your dad had a perfect right to leave you out of his will. But if you can show you were named in a previous version of his will, you may be able to argue that your dad was not in his right mind when he inexplicably dropped you from his list of heirs. “You should ask your dad’s executor for three things — a copy of your dad’s last will, a copy of his prior will, and a list of his assets,” says Barry Fish, a wills and estates lawyer in Thornhill, Ont. If your dad’s executor hands over the necessary documents, proceed to step 3.

Get a lawyer — fast

If your dad’s executor won’t give you copies of the documents, you will have to sue to see them. Have a lawyer file a court application to force the executor to hand over the papers. “As long as you can show that you may be a beneficiary under your dad’s prior will, the court will likely order the executor to provide you with copies,” says Fish. But act quickly. Once the money is handed out, your chances for a successful challenge are next to zero. “You can’t protest six months after your brother has taken the money and spent it at Casino Rama,” says Ed Olkovich, a wills and estates lawyer in Toronto. “If the money is gone, it’s gone.”

File a challenge

Have your lawyer file a “Notice of Objection” or a “Caveat” to advise the court that you are challenging the will. You will have to outline the grounds for your challenge. Grounds can include forgery, fraud, undue influence, and mental incapacity. It could be that your dad had dementia and didn’t know what he was doing when he made his last will. It could be that he was pressured by your sister, who was taking care of him, to leave everything to her. Even if you don’t have grounds to contest a will, you may be able to argue your right to other claims. For instance, if you took care of your father’s six-plex for years and weren’t paid for your work, you may have a claim for labor costs.

Consider the cost

Think about whether a fight is worth it. In the best case, your father’s estate will agree to settle within months. But if your dispute drags on for years, the bill can run into six figures and may be entirely your responsibility. “If your case goes to trial, the loser is responsible for his own legal costs and also those of the winning side,” says Charles Ticker, a wills and estates lawyer in Markham, Ont. “So make sure there’s enough to fight over.”

Consider mediation

In some cities, you must undergo mediation before a courtwill hear your case. In other areas, mediation only occurs when both you and the estate agree to be involved. Mediation involves meeting with both a representative of your dad’s estate and a mediator, who is usually a former judge or estate lawyer. The mediator shuttles between you and the other side and tries to hammer out a compromise that will settle the estate as quickly as possible. “Mediation is emotionally draining, but very effective,” says Ticker. “Both sides know it’s their best chance to end the fight without a drawn-out battle in court.”

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