Can We Cut Daughters From A Previous Marriage Out Of Our Will And Leave Everything To Our Son Without Risking An Estate Fight?

Q. My husband Shane and I are looking to draw up new wills and would like to leave whatever we have to our son. Shane has children from a previous marriage who lived with us for many years from their childhood until young adulthood. Things have changed and we now don’t want my husband’s girls to be beneficiaries of our estate . I understand, however, that even if we specify that we want our son to be the sole beneficiary when we die, my stepdaughters may try and contest our last wishes. The solicitor drawing up our new wills has advised us to write a statement outlining why we don’t want them to inherit what we leave. What sort of things should we put in this statement to ensure that any contesting of our wills is unlikely to succeed? Both girls are self-sufficient, fully-functioning, employed, non-disabled adults with capacity who are living independently (and have been for several years) with no foreseeable likelihood that that will change. (If I die, my husband will inherit all of what I own and vice versa. It’s only in the event of both of our deaths that this will be a potential issue). We are in Ontario. —Thank you for your thoughts, Brittany

FP Answers: Dear Brittany, congratulations on investing in a new will with lawyers. Your lawyer can provide specific legal advice on your circumstances and assets. Lawyers are expert witnesses in court. They can help confirm the validity of your will and intentions. I cannot interfere with legal advice you receive. This answer is information only on questions you pose. You must rely on your lawyer for legal advice.

Much depends on whether you or your husband have made promises to your husband’s daughters that could be enforced when the time comes. Perhaps you agreed to pay for their school tuition, for example. Though these individuals are currently independent adults, they may be dependants later. Dependants may develop support claims to your estates.

Ontario, where you both live, requires dependants under Part V of Ontario’s Succession Law Reform Act to be receiving support or entitled to support at the time of a person’s death. Leaving everything to your spouse does not prevent dependants’ claims for support. Estates are frozen if dependants raise claims. Courts can override wills to provide for dependants at the time of the court hearing if they qualify.

The stepdaughters could ask Ontario courts to provide “adequate” support for them if they qualify and you have not done so. Courts decide what is adequate in their discretion within statutory rules. Support means more than birthday gifts. Regular periodic payments like rent can be sufficient. You may wish to document what, if any, payments were made.

Bear in mind that claims can be made and circumstances change. You may want to consider having an affidavit to incorporate your reasons to omit your husband’s daughters as beneficiaries of either of your estates. You can specify these reasons in case your lawyer cannot testify. Your reasoning should not be capricious.

If there are reasons to exclude persons from your wills because of their misconduct, you can document this in an affidavit. There may be no one else who can provide this evidence. Preparing your evidence can also allow your executor to defend your estate in the unlikely chance any stepdaughter looks at your estate as an easy target for a broken promise.

As well, Ontario courts now require minimum evidentiary thresholds to challenge wills. You are aided by certain presumptions that your lawyer-prepared wills are valid. Disgruntled relatives can no longer waste an estate on frivolous legal will challenges in Ontario without proper cause. This may not be the very last will you and your husband make. Documenting your reasons confidentially should reduce your risks and not interfere with your relationship.

This information is no substitute for legal or tax advice. Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law.

Do you have a question for FP Answers? Email wealth@postmedia.com.

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