Q. My mother and my father were each other’s beneficiaries. Now that she has died, can he cut us out of the will even though my mother wanted us to inherit their estate when my father passes on?
A. This is not an uncommon question. One parent promises a child that they will always be provided for by the surviving parent’s will. But was your promise made in both parents’ wills? Such promises, if not in writing, may not be legally enforced.
Married spouses usually arrange their affairs to benefit surviving spouses without the use of wills: Property is owned jointly or designated for tax reasons to the surviving spouse. Your father may inherit your mother’s entire estate without conditions in her will. If so, your mother’s will may thus not be applicable.
Your father could also remarry. In Ontario, this would also cancel his prior will. His new partner would have spousal property rights as well as support rights. These rights can prohibit your father from honouring your mother’s verbal promise. If you wish to investigate this, you will likely need evidence of your mother’s promise and that you relied on it, to your detriment.
So when does your mother’s verbal promise become a legal obligation on your father? Perhaps both your parents made reciprocal or identical wills. But more than that is required. Did they agree not to alter or amend their wills in the event of the other’s passing? Usually, a collateral agreement supports these mutual promises. It would be worth checking whether they had this done.
Can you establish in court that your parents agreed to treat their wills as mutual wills? The law requires some evidence to substantiate such contractual arrangements. So, for instance, it is not sufficient for you to allege that your mother verbally promised you would inherit a summer home that your father is now attempting to sell.
Let’s look at the hypothetical example of the summer home, and evidence that would be helpful in making your case. Did you maintain the property for several years? Did you pay home expenses? Did you rely on your mother’s promise that the home would be left to you in your father’s will? You should investigate if you have an enforceable promise that can be proved in court.
Your success may depend on many factors, including your family’s financial circumstances. And of course, finding lawyers who will start such claims—which are challenging and difficult to prove—is another obstacle.
Ed Olkovich, online at MrWills.com, is an Ontario Certified Specialist in Estate and Trusts Law. Answers are only information, not legal advice.
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