Q: My dad and stepmom have been married 34 years and are well into their 80s and in poor health. It’s a guessing game on who will pass away first. My stepmom has no children, or siblings alive—just a third cousin whom she keeps in contact with occasionally.
They both have separate wills that name each other as full beneficiary. The wills also state that once the remaining person passes, I will be an executor/beneficiary along with my sister.
It has been their intention the last 30 years to leave their estates 100% to my sister and me. I also have the living power of attorney and have been assisting them a lot more with their health issues as of late. They both get a bit confused at times but they do not have a diagnosed mental illness. With all the stress of illness and old age, they no longer seem to be getting along as well as they used to, which makes me wonder if it is possible that my stepmom would—or could—change her will if my dad passes first. If she gets 100% of the estate, is there any recourse for me? I have done a lot for them over the years and it would be very unfair if this happened
A: Janet, you ask questions about love, money and life’s mysteries. Unfortunately, these have no simple answers. Lawyers can sound cynical when they ask “why are you helping family?” I do not want to change your approach to your family. However, are you helping family because of your sense of duty or sense of gain?
You need legal advice about your specific duties to your dad and stepmother. Your inquiry raises many issues that are common with modern blended families. They involve complex, often conflicting, legal rights and remedies.
Meet with your estate planning lawyer. Get advice to properly help family well into their 80s and in poor health. Be prepared and protected on these key issues.
Whose best interests? – If you act as your dad and stepmom’s attorney, you must put their interests first. This means that your own personal interest must be secondary to theirs. This can lead to potential conflicts as you handle your duties. That is why you need legal advice on your personal responsibilities.
Power of Attorney issues – You said you had a “living power of attorney”. I am not sure what you are referring to. Powers of attorney for property or finances are different from healthcare documents. The first deals with financial affairs while the other deals with personal care decisions. Health issues include shelter, clothing and medical treatment decisions.
Each province has separate statutory legal requirements for these documents. Are you acting under their powers of attorney because they cannot make decisions? Have lawyers review their documents and explain your duties. Keeping records of your time commitments is also important. Are you spending five or 45 hours each week helping family?
You must keep records of financial and personal treatment decisions. These can be time-consuming, complex and entitle you to compensation. This will depend on the wording in the power of attorney documents and any provincial rules.
When it comes to their wills, know this:
Wills are not contracts – Your father or stepmother may have included you in previous wills. That does not give you an automatic entitlement to inherit.
Death changes many things. Your father or stepmom can remarry. That would create new legal obligations that can trump many responsibilities to you. Your inheritance may depend on your ongoing relationship with them.
Will capacity issues – People need sound minds free of delusions to make wills. This is called having testamentary capacity. It is not a medical test but a legal one. You may have already seen evidence to question their capacity to change their wills.
If you are excluded from new wills, consult your lawyer about your rights.
Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law
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