The LEGAL/JUSTICE POST

Talk about anything.

Moderator: Global Moderator

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Re: The LEGAL/JUSTICE POST

Post by Webscout » Sat May 25, 2019 9:22 am

Aretha Franklin: Three handwritten wills discovered in singer's home

Code: Select all

https://www.bbc.com/news/entertainment-arts-48348191

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Couple faces fine if their house falls into lake Michigan...but what a view...

Post by Webscout » Sat Jun 01, 2019 8:46 am

Couple faces fine if their house falls into lake Michigan...but what a view...

Code: Select all

https://www.theweathernetwork.com/ca/videos/gallery/couple-faces-fine-if-their-house-falls-into-lake-michigan/sharevideo/6043549281001/most_popular

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Are Canadian will kits or online wills worth it?

Post by Webscout » Tue Jun 04, 2019 8:09 am

Tuesday June 4/19
Are Canadian will kits or online wills worth it?
Lynne Butler, BA LLB

I'm attaching a link to an article on a site called Maple Money, a Canadian finances site. It's a discussion of will kits (the paper kind) and online will- preparation software. Click here

Code: Select all

https://maplemoney.com/canadian-online-will-kits/
. I thought I'd post it here for those of you who are considering making your own wills.

As a wills lawyer, obviously I'm not thrilled at the idea that people make their own wills. And no, it's not because I make less money if you do your own will. In fact, I and other lawyers make a lot more money if you DO make your own wills because we get paid by the hour after you pass away to fix the mistakes you make and don't know about.

So please put your cynicism aside when I say I think paying a lawyer to make your will is a good idea. What do I add that a will kit doesn't? Advice. Experience. Do you know which of your assets is taxable? Do you know who must pay the tax if you leave your cabin to one of your kids? Do you know how to write a trust for a disabled child or a spendthrift or a minor? Do you know what might happen if you leave out one of your kids? Do you know the rules regarding common law spouses in your province? These are some examples. For some of you, there are even more issues.

Having said all that, I can see value to using a will kit (either online or paper) if you are doing something extremely simple, such as leaving everything to your spouse. At least you'll have named an executor. But there are very few people whose affairs are as simple as that. If you have a blended family, joint property with your kids, minor kids, a business, a disabled family member, or a common law spouse, you should have legal advice.

Okay, that's my view on the topic. I know full well that some of you either don't have access to a lawyer, can't afford a lawyer, or simply want to do the task yourself. I hope the attached article is helpful. Keep in mind that the Maple Money site does endorse products and services for a fee.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Nova Scotia, Canada- court protects testamentary autonomy

Post by Webscout » Wed Jul 31, 2019 8:18 am

Nova Scotia, Canada- court protects testamentary autonomy
Lynne Butler, BA LLB

There are interesting things happening in the Nova Scotia courts. Their Supreme Court has become the first court in Canada to determine that testamentary autonomy is a constitutionally-protected right.

What does that mean for your average testator making his or her will in Nova Scotia? It means protection of the right to dispose of his or her estate as he or she sees fit. More specifically, it means that wills that leave out adult, non-dependent children are no longer open to challenge on the ground of not including that child.

The case I'm talking about is Lawen Estate v Nova Scotia (Attorney General).

Code: Select all

https://www.canlii.org/en/ns/nssc/doc/2019/2019nssc162/2019nssc162.html
It came about as a result of the will of Jack Lawen. He had three daughters and a son, all adults and all independent of their father. Mr. Lawen left $50,000 to two of his daughters, the residue of the estate to his son, and nothing to his third daughter. The will was contested on the grounds that it did not adequately support some of the beneficiaries.

All provinces in Canada have laws that allow a dependent of a deceased to contest a will if the dependent is not adequately provided for in the will. In almost every province, the definition of "dependent" includes a spouse, a minor child, and an adult child who is financially dependent on the deceased. The law is designed to ensure that someone who depends on the testator would not be left penniless and vulnerable. Nova Scotia's law is a bit different, in that it does not say that an adult child must be financially dependent. This left open the question of whether an adult child who was not in any way dependent on her father could bring a claim that her father had not adequately provided for her. If she could, since there was no actual or economic obligation by the father, it would have to be seen as a moral obligation.

This is an important distinction for testators. If moral obligations to persons to whom you have no legal obligations were to be upheld, you would lose much of your freedom to leave your estate to whomever you wish. Anyone who felt you "owed them" might have a right to contest your will. We all acknowledge that there are some rules about who you have to look after in your will, but adding more rules would chip away at testamentary freedom.

The section of the law that contained that definition of "dependent" was challenged as being against our Charter of Rights because it impaired a person's right to leave his estate where he chooses. But is testamentary freedom a constitutional right? The court said that it is.

The end result is that the judge struck down the sections of Nova Scotia's law that says a dependent includes non-dependent adult children. These sections were held to be inconsistent with Canada's constitution, that they infringe on testamentary autonomy, and that they violate the right to liberty guaranteed by section 7 of the Charter.

This will mean a big change in the law of inheritance in Nova Scotia. It brings that province's law more in line with what the rest of the country is doing about dependents.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

POA horror stories can sometimes be prevented

Post by Webscout » Tue Aug 06, 2019 9:31 am

Monday, August 5, 2019
POA horror stories can sometimes be prevented
Lynne Butler, BA LLB Canada

Is there anything more disheartening than siblings fighting bitterly over who gets to manage the parents' money, with everyone accusing each other of theft and bullying, and the parent turned into a mere pawn in the struggle?

Unfortunately, it happens a lot more than most people would believe. There are numerous factors that go into the perfect storm of a lawsuit over an Enduring Power of Attorney: a parent with diminished mental capacity, sibling rivalries, poorly drafted (or worse, home-made) documents, and that one greedy person who doesn't mind poking the bear no matter how badly people get mauled.

Another factor is the general lack of understanding among the population about what the POA document allows them to do. Many don't see anything but their name, and take it as blanket authority to take, use, keep, or spend the parent's funds. Most of the time, the parent's lawyer who drafted the document hasn't helped the situation, since the document itself may be full of legalese, or clause after clause of inapplicable boilerplate language that everyone ignores.

I suggest that everyone who hires a lawyer to prepare a POA should insist that the document be readable and understandable by non-lawyers. They should refuse to accept words and phrases they don't understand. They need documents that they can explain, and that their son or daughter can refer to as an actual guide to what they are supposed to be doing. No legalese. No run-on sentences with hundreds of words.

The documents I draft for my clients are intended to be used by lay people, not just lawyers. After this many years in the business, I've heard my share of belligerent bullies demanding to know where the document says they can't live rent-free in Mom's house or use Mom's money to build a swimming pool or buy them a car. So now I make documents that make it clear.

I also provide a "Do and Don't" tipsheet with every POA. It is meant to be used by the person who acts under the POA document and I suggest to my clients that it be given to that person. It's a small thing for me to do, but can have a huge impact on how someone behaves when using a POA. For one thing, they've got an actual guide in their hands that could prevent errors, and for another, they won't be able to wiggle out of trouble later by saying "I didn't know that wasn't allowed." Giving out this tip sheet is a practice I suggest all lawyers start following.

And now, just to illustrate just how bad things can get between siblings who are arguing over a parent's POA, check out this article from the Ottawa Business Journal.

Code: Select all

https://obj.ca/article/ottawa-dispute-thrusts-power-attorney-authority-under-microscope?fbclid=IwAR21OO1Y0Vh-NLMdfdG8C87YG_5LiNeGWhcFCZ97J9w4Yar8qVZsWXgVCA0 
It tells a couple of stories about families who have basically destroyed themselves by fighting over who gets control of their parents' finances. In one case, while the siblings all fought about who should have control of their 92-year-old mother, one son got her to write a cheque for $50,000 while another helped himself to $350,000 to buy himself a house with a pool.

No document is going to prevent a truly greedy, dishonest person from trying to steal from his own mother. But a properly drafted document can provide transparency and keep everyone in the loop so that it's harder to get away with theft or fraud. It can say that when one of the kids takes money (or can't explain where it went), he or she loses that much off his or her inheritance. It can appoint a neutral third party POA who won't allow anyone to get their hands on the money improperly.

You wouldn't think that parents would have to protect themselves from their own children, but statistics show that they do.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

My husband has an illegitimate child. Does he have a claim against my husband's estate?

Post by Webscout » Sat Aug 17, 2019 8:51 am

Friday, August 16, 2019
My husband has an illegitimate child. Does he have a claim against my husband's estate?
Lynne Butler, BA LLB-CANADA

I am often asked by clients and readers of this blog about how children born out of wedlock affect the estate planning of the biological parent. I was recently asked an interesting question along those lines by a reader and I've decided to share it here because I think it brings up a scenario that is familiar to many people. Here is the question and my response:

My husband and I, both in our 80s, have recently made our wills leaving everything to each other and then equally to our children. My husband has a son from an affair while we were married. The son lives in another country and we are in Canada. The son appears to be well educated with a good profession. He has tried to make contact with my husband. Must he be mentioned in our will? Could he contest his father's will and would that interfere with my inheritance if my husband dies first?

As with most questions about how laws apply to real people, the answer isn't just a simple yes or no. At least, not without several more details.

You have not said whether the son was adopted by anyone else. I am thinking of a step-father who might have adopted him upon marrying the boy's mother. If the son was adopted by anyone else, he would legally no longer be the child of your husband and there would simply be no question of the son having any right at all to inherit anything from your husband. Since the fact of adoption was not included in your question, I am going to proceed as if there was no adoption.

The law does not distinguish between legitimate and illegitimate children when it comes to a right to inherit. So, we start off with the premise that the illegitimate son is of equal legal status with the children of your marriage. The fact that there doesn't seem to be a relationship between father and son, at least not that you've described, doesn't automatically mean anything though it could be relevant when combined with other facts.

Then we look at whether the son would be able to leverage his biological relationship into a claim against the estate. He is not a minor. He is not a post-secondary student. He is not disabled. He is not financially dependent upon your husband. These facts mean that he is not a person who would automatically have the right to contest the will based on the idea of dependency. This is a big question out of the way, since the courts tend to be sympathetic to dependents who are left out of wills and who are struggling because of it.

Having excluded that possibility, we then look at whether there would be any other right to contest the will. I note that although I have not identified your province in order to protect your privacy, you are not in British Columbia where the laws that allow children to contest their parents' wills are somewhat different than the test of the country. In Canada, parents are not required to leave their estates to their adult, financially independent children, either equally or at all. We do have a strong tradition of doing so, and this is usually what our children expect us to do. But parents have the right to leave their estates where they choose, within some restrictions.

It is not necessary for your husband to mention the son in his will. A misconception that I hear often is that if you leave a person a dollar in your will, he can't sue you. Well, that's nonsense of course, but the grain of truth behind it is that if you leave someone a small gift in your will, it shows that they weren't left out accidentally (say, by a typo or the lawyer not recording a name, etc).Your husband may choose to leave something to the son. He might also choose to state in his will that he is aware of the son but isn't leaving him anything because he doesn't have a relationship with him. It achieves the same thing.

From what you've told me, I do not believe that the son would have any claim against your husband's estate that would succeed in court. Obviously I can't guarantee that he wouldn't try, since I am approached regularly by people who want to contest wills for no reason other than they are ticked off.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

The court allowed an executor fee of $100 million

Post by Webscout » Mon Sep 09, 2019 9:59 am

Sunday, September 8, 2019
The court allowed an executor fee of $100 million
Lynne Butler,Lawyer east coast Canada

Though most people know that executors can be paid for handling an estate, the question of how much they should get can sometimes be complex.

Recently I read a blog post by Paula Lester of Scotiatrust who was discussing the executors of the estate of Leona Helmsley. The estate was $5 billion, and the executors asked for the sum of $100 million to be split between the four of them. Though the number seems vast, it amounts to 2% of the estate. To read more on the post in question go to one of my favourite blogs, All About Estates, by clicking here.

It's not unusual that trying to agree on an executor's fee leads to trouble. The more complex the estate, the more fees should rightly be paid to an executor. After all, administering an estate is a heck of a lot of work. Something that beneficiaries and others tend to forget is that even when the estate is relatively straightforward, the executor carries personal liability for each and every asset. That's a lot of risk and a lot of stress. Those factors are also considered when trying to determine an appropriate fee.

One thing you can do to reduce this argument in your own future estate is to mention in your will how much you want your executor to be paid. Don't leave it up to the parties to figure out after you're gone.

When making wills for my clients, I always raise the topic of paying the executor. Most of the parents I talk to in my practice tell me that they assume their children will not want to be paid for the job and therefore there is no need even to mention it. To me, that is making two mistakes in one.

One mistake is assuming that their son or daughter will not want to be paid. Built into that statement are assumptions that all relationships will be good all the time, that there will never be a squabble over anything, that all will go swimmingly. I can't tell you how many sons and daughters start off their estate administration intending not to charge a fee but end up so battered and bruised by the experience that they refuse to walk away empty-handed.

The second mistake is not saying anything about the fee in the will. Again, an assumption is built in. This time it's the assumption that people can read your mind. This is how I explain it to clients: The people who think there should be no fee will say, "if Dad wanted you to claim a fee, he would have said so." The other side of the family, the ones who say there should be a fee, will say "if Dad wanted you to do the work for free, he would have said so."

So who is right? Nobody will know if you don't say so in your will. Until, of course, it's dragged into court and the judge steps in to name the figure that you should have named. In the Helmsley estate, the matter went to court and the judge agreed that $100 million was reasonable in the circumstances. You may not have $5 billion dollars, but who wants to waste what they do have? Addressing the question of how much to pay your executor can save your estate time. money, and headaches.

Code: Select all

https://www.allaboutestates.ca/100-million-executor-fee-unexpected-not-unreasonable/

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Funny Legal Terms

Post by Webscout » Mon Sep 16, 2019 9:15 am

Funny Legal Terms

Lynne Butler, BA LLB-Lawyer East Coast Canada (Member Mensa)

The post below first appeared on my blog 10 years ago when I first started blogging. I hope you still find it amusing!

When people think about the law, having a chuckle isn’t the first thing that comes to mind. But many of us who work in this serious profession like to take every opportunity to smile at certain aspects of the legal system. After all, it isn’t good to take yourself too seriously.

Some words that have a certain meaning to people in general can have a completely different meaning in the context of the law. Here are some examples:

1. Ignoramus – this is a Latin word that literally translates as “we ignore it”. In law, it was used by grand juries in the USA when they had heard a case against an accused person and had decided not to prosecute the person. The official finding of the jury was “ignoramus’, meaning that they were ignoring the charges against the accused person. Today the word has evolved into quite a different meaning in popular usage!

2. Pickle – in real estate law, this meant a small parcel of land enclosed by a hedge.

Some legal words are astonishing in what they tell us about how much our legal system has (thankfully) changed:

3. Cold water ordeal – in medieval England, the courts had creative, if barbaric, methods of determining whether a person was guilty of a crime. These methods were referred to as “trial by ordeal” and were based on the concept that the accused person should be subjected to something which he would not normally be expected to survive and if he was innocent, he would be saved by God. One of these trials by ordeal was the cold water ordeal in which the accused person had a rope tied around his neck and was thrown into a river. If he died, he was guilty; if he somehow survived, he was innocent. Needless to say, most were found guilty.

4. Hue and cry – in old England, when a person committed a crime, a witness or victim would raise the alarm by shouting something like “stop, thief!”. Anyone close enough to hear this “hue and cry” was expected to join in the chase to catch the offender. Eventually the verbal shouting became a written notice that was issued by the local authorities to alert the community about the offender. This notice survived in the form of a “wanted” poster seen in western movies. Today we have online and newspaper notices of fugitives as well as media distribution of security camera footage. The “hue and cry” has evolved with changing technology but the essential purpose and result are the same.

And some legal words just sound funny, which as an avid reader and writer, I enjoy:

5. Butts and bounds - the corners of the boundaries of a parcel of land where the property lines intersect.


6. Outsucken multure – in old Scotland, this was a fee paid by a farmer who went to have corn ground at a mill that is not the mill he was bound to by tenure.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

“Impenetrable (…) Gobbledegook”: Knowing and Approving of the Contents of Your Will

Post by Webscout » Sat Sep 28, 2019 8:21 am

Friday, September 27, 2019
“Impenetrable (…) Gobbledegook”: Knowing and Approving of the Contents of Your Will
Lynne Butler, BA LLB-Lawyer East Coast Canada

Have you ever signed your name to a document without fully understanding what it says? Judging by the number of people who tell me they have in the past signed wills without really understanding all of it, I would say the signing of unclear documents is not that unusual.

Sometimes the lack of clarity arises from the language of the document. There's a reason we have the word "legalese". I recently came upon a discussion of a case (not a particularly new case, but still very interesting) that talks about the effect of having language so "impenetrable" that it becomes nothing more than gobbledygook. This comment was made by a judge in reference to a will.

In this case, the court said that even though the will was read over to the testator, it was unlikely that the testator would have understood it without further explanation. Click here to read a blog post by the Vancouver law firm of Alexander Holburn Beaudin & Lang that discusses the case in more detail.

Code: Select all

https://willsandestateslawyersblog.ahbl.ca/2019/06/19/impenetrable-gobbledegook-knowing-and-approving-of-the-contents-of-your-will/Judge 
for yourself whether you'd understand that wording without a lawyer!

Part of my approach to drafting is that wills need to be understood by people who are not judges and lawyers. Testators, executors, and beneficiaries all need to work with that document so it needs to be accessible. I'm not talking about dumbing it down because intelligence is not the issue. The issues are run-on sentences, Latin words, and legal jargon. Accuracy is the prime goal, with readability right behind it.

Personal drafting style varies from lawyer to lawyer. Some like more formality than others. Some are more comfortable with Latin terms than others. Some are just good at figuring out better ways to say things. Just make sure that the will you end up with makes complete sense to you, and that you can read and understand it without your lawyer in the room.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Ex-girlfriend assaults and robs widow ......

Post by Webscout » Fri Oct 04, 2019 11:09 am

Thursday, October 3, 2019
Ex-girlfriend assaults and robs widow over change to husband's will
Lynne Butler- Lawyer-East Coast Canada

Some stories involving estates are so strange, they are hard to believe. This is one of them.

In 2013 in England, a man named Michael Winner passed away, leaving a large estate. He was survived by his wife, Geraldine Winner, whom he had married in 2011. Things took a terrible turn for Mrs. Winner in 2015 when her husband's former girlfriend, with whom he had been involved between 1999 and 2002, got upset that she'd been left out of his will.

The former girlfriend, Gurgana Gueorguieva, believed that she was supposed to have been left a bequest of 100,000 pounds. She also believed that Mrs. Winner was the one who had persuaded her husband to leave Ms. Gueorguieva out, and that Mrs, Winner had hastened her husband's death by the use of a voodoo doll. She decided to get even.

For the next two years, Ms. Gueorguieva stalked Mrs. Winner, cased her apartment, and eavesdropped on her, all the while planning her revenge. In October 2015, Ms. Gueorguieva made her move. She forced her way into Mrs. Winner's apartment one night, armed with an iron bar. She hit and restrained Mrs. Winner, tying her down with plastic cables. She then looted the apartment, taking jewelry, artwork, photographs, and cash with a total value of somewhere between 100,000 and 300,000 pounds.

Mrs. Winner, 81 years old, was left with cuts to her head, a broken rib, and a broken finger. Ms. Gueorguieva, 48 years old, was arrested and charged. This week, she was sentenced to 9 1/2 years in prison and is the subject of an indefinite restraining order.

To read more about this story,

Code: Select all

https://www.telegraph.co.uk/news/2019/09/27/michael-winners-ex-girlfriend-robbed-widow-take-revenge-change/
Whenever I read stories about estates gone wildly wrong, I always try to determine what the person (in this case, Mr. Winner) could have done differently to avoid the dispute. In this case, I honestly don't know what else he could have done. Surely a person is not obligated to leave a bequest to former romantic partners just in case they turn out to be violently jealous nutbars. It's quite possible that before launching her home invasion and robbery, Ms. Gueorguieva consulted lawyers to see whether she could contest the will, and was told that she had no grounds to do so.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Canada-Video:Top 10 Tips for a Better Will

Post by Webscout » Sat Oct 05, 2019 8:23 am

Canada-Video:Top 10 Tips for a Better Will

Code: Select all

https://www.youtube.com/watch?v=gpGwdseXQuw

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

Re: Canada:Lawyers' victims get payout

Post by Webscout » Mon Oct 07, 2019 1:54 pm

Canada:Lawyers' victims get payout after probe found gap in compensation system

Code: Select all

https://www.cp24.com/news/lawyers-victims-get-payout-after-probe-found-gap-in-compensation-system-1.4626480

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

CDN:Do you know how much your lawyer is billing you?

Post by Webscout » Sun Oct 27, 2019 11:27 am

Note- I would think much of this applies to the USA and perhaps other countries as is is simply good info. Regardless check your sources/

Saturday, October 26, 2019
**Do you know how much your lawyer is billing you?**
Lynne Butler, BA LLB-Lawyer East Coast Canada


Last week I dealt with a case where a client hired me to represent her at a taxation of a lawyer's account. That's a process whereby an independent person appointed by the courts reviews the lawyer's bill (with the lawyer and the client present) to see if the bill was reasonable or not.

In this client's case, the lawyer worked for her for about 18 months. During that time, the client did not receive a bill, sign a contract, or see a fee schedule. And yes, she did ask more than once to receive a bill but the lawyer failed to produce one. Eventually, the client and the lawyer parted ways in mutual frustration, with the case not resolved. The lawyer presented a bill for almost $50,000. This is when the client found out she was being charged $400 an hour.

This sort of thing happens every now and then. In response to this, the Law Societies across Canada have set down rules meant to produce transparency in lawyers' billing of their clients. The goal is to ensure that clients know how much they are being billed for the work. This, of course, doesn't guarantee that the client will love the hourly rate, but at least they'll know what they're getting into.

When you begin working on a case with a lawyer, you should receive, in writing, information about billing. This is referred to as a retainer letter, even if you are not asked to give retainer funds in advance. The letter should cover:

A summary of the work you've asked the lawyer to do (e.g. obtain a divorce, contest a will, sue the insurance company, etc.).
How the lawyer is billing you, whether that is by the hour, on a contingency (whereby the
lawyer takes a cut of a settlement), or a set fee for the job.
If there is an hourly rate, the exact amount of that rate
The amount of funds, if any, that must be paid to the lawyer up front before the work begins
Which disbursements (expenses such as printing, postage, court filing fees, couriers, etc) the lawyer expects to charge you for
When you should expect to be billed (i.e. at the end of the case, once a month, etc.)

Hopefully, in your first meeting with the lawyer, you discussed fees and timelines. The information about billing that you remember from that meeting should match up with the information in the retainer letter. If it does not, call the lawyer's office right away for clarification.

It's stressful enough having to deal with a lawsuit. Having to then turn around and challenge the lawyer's bill is yet another expense and more time and stress.

User avatar
Webscout
Administrator
Administrator
Posts: 30261
Joined: Thu Dec 28, 2006 8:43 am

CDN:Does this will create rights for the kids? Nope.

Post by Webscout » Mon Nov 04, 2019 8:24 am

Monday, November 4, 2019

Does this will create rights for the kids? Nope.
Lynne Butler, BA LLB-Canada

There is a very common clause in wills that seems to be misinterpreted often, causing quite a bit of confusion and upset. Today I'd like to discuss it and hopefully shed some light on it.

The phrase says "I leave my estate to my spouse, if she survives me. If she does not survive me, divide my estate among my children." This type of phrase (with some variations in wording) is usually found in mirror wills. Those are the wills made by two people in a marriage or partnership. Their first wish is to leave everything to each other, but of course they don't know which of them will pass away first. That's why it's necessary to have an alternate - or Plan B - in case their spouse dies before they do. Plan B is to leave it all to the kids.

The problem arises because of the way the children interpret the phrase. They sometimes take it to mean that Dad is leaving everything to Mom, and then when Mom passes away, Dad is leaving it to the children. If, after Dad dies, Mom chooses not to leave the estate to the children, the children may feel angry and betrayed. The question I hear quite often is "doesn't Dad's will leave the estate to us when Mom dies?" However, that is not at all what is meant by the clause.

Let's use Jack and Diane as an example. They are a married couple with a son named Kevin. Jack's will says that if he passes away and Diane is still alive, Jack's estate goes to Diane, but if she has already predeceased him, Jack's estate goes to Kevin. Let's say that Jack passes away and Diane is alive and the estate passes to her. After that, the will is no longer relevant. Its terms have been followed properly. It does not create the right for Kevin to inherit.

If Diane doesn't change her will, on her death the estate will pass to Kevin. This is not because of Jack's will, though; it's because of Diane's will. If she wishes, Diane can make a new will leaving everything to a charity or a new spouse or wherever she wants, and it does not violate the terms of Jack's will. Once she inherits the estate from Jack, it's hers and she can do as she likes with it.

All of this is assuming that Kevin is an adult and is not financially dependent on his parents.

In some circumstances, it is possible to create a trust so that Diane cannot dispose of the estate and must leave it to Kevin. However, such a trust is not created by the clause we've looked at in this post.

Post Reply