Q: My mother died this winter. When we checked her will, it appeared her favourite nephew got the bulk of the estate. As her children, we think this is unfair. What can we do?
A: People who don’t want to leave anything to their children will often state reasons in the will. This is a good practice because it ensures everyone knows why he or she didn’t leave anything to certain people.
In your situation it appears this was not done. Therefore, there are two different answers to this question. The general rule is that a testator (person making a will) can leave her estate to whomever she wishes. It is property belonging to her and no one, including close family, has any vested or inherent right to the property just because of the family relationship. If your situation falls under this general rule you are out of luck and your cousin will benefit under the terms of your mother’s will.
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There are some exceptions to this general rule.
One deals with dependency. If you were dependent upon your mother for financial support, in whole or in part, then under Saskatchewan law she had a duty to make adequate provision for you in her will. If she did not, you can make an application to court to change those provisions so you get an adequate amount from her estate. This does not mean you will get everything, just enough to give you financial assistance and the nephew obtains the rest.
Another exception deals with undue influence and capacity.
Capacity means that the person making the will had the required mental awareness to understand the will at the time it was made. This is a fairly low legal threshold to clear. If the person knew the will dealt with her property, that it took effect on her death and that it gave the property to others, that is usually enough to be able to draft a will. If your mother was under some mental disability at the time she made her will, you may be able to have it overturned.
Remember, capacity is measured at the time she made the will, not later or at the time of her death.
Undue influence is slightly different. Someone close may be able to influence the testator to write a will that benefits him. Did your nephew visit often for several years or only as your mother became older and frail? Did he find the lawyer that prepared the will or did your mother’s lawyer do it? The answers will help you decide whether the nephew has improperly influenced your mother.
These situations are emotionally and legally difficult. Obtaining legal advice is usually a good idea.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
