Q: If family members look after a loved one, aren’t they entitled to
special consideration under his or her will? A few weeks ago you
answered a similar question in which the son and daughter-in-law cared
for Mom, but her will left almost everything to a son who had nothing
to do with her care. You stated there is no requirement that all
children be treated equally. Then you said a will could only be
challenged if
Read Also
Communication key to bridging generation gap
Each generation is shaped by the predominant forces at play during their formative years. Acknowledging these influences can improve communication among the generations.
dependents were not looked after or the will was made when the testator
did not have the mental capacity or there was undue influence.
How-ever, you avoided the main question: isn’t a child who looks after
the parent entitled to different treatment than the other children?
A:The will stands. Canadian courts have taken the view that the last
wishes of a testator should be respected unless there are clear reasons
for challenging the will. Those are the reasons mentioned above.
What about the child who has gone to extraordinary efforts to help a
parent?
If a child feels strongly that he or she is unfairly treated, he could
advance a claim on the basis of unjust enrichment. The central notion
of this is that one should not benefit at the expense of another.
Three things need to be proved: that a benefit was conferred; that it
was done at the expense of another; and that there was no legal
requirement for
conferring the benefit. Even though parents provide benefits to their
children, they can’t sue their child after the child has become a
successful adult because there is a parental obligation to support your
child.
Could a sibling argue that because she looked after her parents, unjust
enrichment should apply? Clearly, there is a benefit – the parents have
been taken care of. The benefit was at a cost to the sibling who spent
time and perhaps money looking after her parents.
However, the tough question will be why the benefit was provided. A
judge might conclude the reason the claimant looked after his parents
was natural love and affection, not monetary reward. In my view, to
prove otherwise would be difficult. In my search of case law I haven’t
been able to find a case where a son or daughter successfully claimed
unjust enrichment for taking care of a parent.
Another ground that a sibling could advance was that there was an
agreement to provide certain assets, but there would have to be strong
evidence to support such a claim. Simply stating “Mom and I had this
agreement” will not
succeed.
If a claim for unjust enrichment is successful, it would be paid from
the estate. Then property would be distributed according to the will.
