Thinking of making a will? If you're in Canada, don't bother!

[KarlGauss]

I suspect I'm not alone in my belief that when I die, I can exercise a final act of authority over my worldly possessions and direct, even from the grave so to speak, who does, and does not, receive them. I mean, isn't that what a last will and testament is all about? Isn't it?

If you have a will, or are thinking of making one, you may find this article (http://www.thestar.com/news/canada/article/899471--court-overturns-will-of-man-who-left-everything-to-his-son) of considerable interest (warning NSFTWWS*). It's a short piece but can be summarized even further as saying,'Who cares what you want done with your assets and possessions; the courts will decide what's best." That is to say, a Canadian man, a lout and boor to be sure, specified in his will that he wanted all his things - cash, property, valuables, etc. - to go to his son, and nothing to any of his four daughters. The latter appealed and, for reasons that would seem to defy both common sense and justice, the presiding judge ordered that the daughters be included as equal recipients in the divvying up of their late father's assets, i.e. who cares what the deceased wanted, I know better!

As I understand it, the judge felt that Dad was behaving towards his daughters in a manner inappropriate for the 21st century with respect to both his premorbid behaviour and in his last will and testament. Well, it's good to know that there's a least one judge out there who will make law instead of confining himself to interpreting it.

So, one more victory for the state over the individual. I can only pray that the judge's decision is appealed and reversed. I can hope.

*NSF Those With Weak Stomachs

[Laudenum]

It's not unusual for certain aspects of a will to fall foul of the courts - freedom of testimentary disposition is not unlimited - but it certainly seems like a weird ruling.

In Ireland, a child can apply for a fair share of their parents estate, but are not necessarily entitled to anything.
To divide the entire estate between the five children seems incredibly invasive.

[Fear Itself]

The same thing can happen in the US, depending on how the will is written. If the will leaves everything to the son, and doesn't even mention the daughters, they can successfully contest the will on the basis of oversight (depending on the state law). But if the will lists all the children, and specifically says that each of the girls is to receive nothing, then it is more likely to withstand challenge. The recommended practice is to leave the each of the girls a pittance rather than nothing at all.

[ColdPhoenix]

The recommended practice is to leave the each of the girls a pittance rather than nothing at all.

That's what my mum's dad did. Not that she contested it.

[KarlGauss]

The same thing can happen in the US, depending on how the will is written. If the will leaves everything to the son, and doesn't even mention the daughters, they can successfully contest the will on the basis of oversight (depending on the state law). But if the will lists all the children, and specifically says that each of the girls is to receive nothing, then it is more likely to withstand challenge. The recommended practice is to leave the each of the girls a pittance rather than nothing at all.But 'oversight' isn't the issue here. The girls argued, and the judge agreed, that their father was being 'unfair' and "inappropriate for the 21st century" in only willing his things to his son.

[2square4u]

In some countries (like my home country), you can dispose off only a certain fraction of your fortune as you wish. There are rules for minimum inheritance to your closest relatives like children and spouse. IIRC, over here you're free to do what you like with roughly one third of what you have when you die.

I don't know how this works for the really stinking filthy rich, though. I guess they manage to circumvent the system somehow if they really want to.

[Fear Itself]

But 'oversight' isn't the issue here. The girls argued, and the judge agreed, that their father was being 'unfair' and "inappropriate for the 21st century" in only willing his things to his son.I was only pointing that US courts sometimes subvert the intentions of a will, not that every detail was eqivalent.

[clairobscur]

In some countries (like my home country), you can dispose off only a certain fraction of your fortune as you wish. There are rules for minimum inheritance to your closest relatives like children and spouse. IIRC, over here you're free to do what you like with roughly one third of what you have when you die.
.

Same here. There's no way to leave nothing to one of your children. If you have one child, he must get at least half of inheritance, if you have two children, each must get at least one third, etc... (So you can leave 2/3 to your son and 1/3 to your daughter/lover/a crook.. but leaving nothing to her is out of question. As I understand it, it has been this way since the revolution, so that children would all get an equitable share contrarily to the previous custom of willing about everything to your eldest son, for instance).

The only exception AFAIK being if your child attempted to murder you (or suceeded in doing so).

[KarlGrenze]

Yea, it's the way in Puerto Rico too. IIRC, and lawyers would probably know this, it has to do with the civil/Napoleonic code vs some other code I can't remember (common law?). At least, that's what I remember my parents (both lawyers) telling me. The inheritance is divided in different parts, and one part is solely to be divided equally among established heirs (through blood or adoption). Only when there are no established heirs can those rules be altered (for example, a childless widow whose parents, grandparents, siblings, uncles, and aunts have died).

Which is why public cases (in the US) where the wife gets everything from the husband always puzzle me. That wouldn't happen in my homeland.

[Paul in Qatar]

A Spite Clause must be carefully written in order to withstand probate. It is worse of course in Louisiana (and Quebec).

[Cat Whisperer]

I'm not feeling the outrage. If you want your will to stand up in court after your death, don't be such an asshole with it.

[Laudenum]

I'm not feeling the outrage. If you want your will to stand up in court after your death, don't be such an asshole with it.


I think the OP is a fan of Testimentary Disposition - it's my stuff, I can do with it what I like, and the courts should not get to rewrite my will because they don't approve.

Why should a judge decide that you have to give some of your stuff to a kid that never loved you, and you feel would have just blown it on drugs, or a degree in Literature?

[bouv]

The recommended practice is to leave the each of the girls a pittance rather than nothing at all.

To be paid in ten equal installments of 1/10th of a pittance each.

[Grumman]

I think the OP is a fan of Testimentary Disposition - it's my stuff, I can do with it what I like, and the courts should not get to rewrite my will because they don't approve.
As am I. As long as your kids have reached adulthood, it should be completely up to you what happens with your stuff, just like it would be if you were still alive.

[Cat Whisperer]

I think the OP is a fan of Testimentary Disposition - it's my stuff, I can do with it what I like, and the courts should not get to rewrite my will because they don't approve.

Why should a judge decide that you have to give some of your stuff to a kid that never loved you, and you feel would have just blown it on drugs, or a degree in Literature?
I don't think that was the case in this family; it sounds like the daughters were fine, the father was just a misogynistic asshole. Apparently your will in socialist BC has to pass the Asshole test. :)

[Really Not All That Bright]

As am I. As long as your kids have reached adulthood, it should be completely up to you what happens with your stuff, just like it would be if you were still alive.
Fuck that. Once you're dead, you have no stuff.

[Grumman]

Fuck that. Once you're dead, you have no stuff.
The rest of the world feels otherwise. Otherwise, wills wouldn't exist at all.

[orcenio]

Fuck that. Once you're dead, you have no stuff.Word.

Old bastards should do their bequeathing while they're still alive and competent if they don't want a judge to step in and inject some common-sense/sanity. Once you're dead your wishes can be set aside at the wisdom of the courts; the public trusts the courts more then some dead asshole.

[Really Not All That Bright]

The rest of the world feels otherwise. Otherwise, wills wouldn't exist at all.
Most of the rest of the world also believes in a higher power. Sometimes people are just wrong.

Inherited property is arguably the most antiquated concept that modern democratic-capitalist society retains.

[Khadaji]

This is interesting stuff - I doubt it will matter in my case, but it is good to know.

[Nava]

In Spain, "the legitimate inheritance" can't be removed unless you specifically disown that child legally; how much does "the legitimate" amount to varies by jurisdiction. I don't know what's the value in Euskadi; in most of Spain it's 50% of whatever the deceased owned (so for example right now my mother and her sister each own 1/4 of their parents' flat and Grandma the other half, because the flat was all in Grandpa's name - if it had been in both names, Grandma would now own 3/4, with 1/8 for Mom and Auntie each) and in Navarra it is "3€ and the right to rent common land from the town" (it used to be "3 reales de vellón and the right to rent common land", then for 22 years it was "500pta and the right to rent common land" - apparently 1€=1 real de vellón), so peanuts. Disowning a child in Navarra is a lot more difficult than doing so under general Spanish law, but it's also not something you need to do for economic reasons.

[Oredigger77]

I guess the right thing to do is write your will and give everyone something and then order the people your don't like's stuff set on fire with your dieing breath. I am definitely in the it's mine I can do what I want with it camp, I mean who seriously thinks that Bill and Melinda Gates giving their kids basically nothing is a bad idea and the court should over rule it.

[Hamlet]

But 'oversight' isn't the issue here. The girls argued, and the judge agreed, that their father was being 'unfair' and "inappropriate for the 21st century" in only willing his things to his son.The court's opinion (http://www.courts.gov.bc.ca/jdb-txt/SC/10/16/2010BCSC1678.htm).

In it the judge quotes the applicable statute, the caselaw interpreting that statute, and goes, in depth, over the parties, their responsibilities, duties, and prior gifts, etc.
Reading the opinion, how the women were treated and how they treated their father, I don't really have a problem with the ruling. The testator apparently lied in his will (he didn't give his daughter $20,000). One of daughters that he tried to disinherit is unemployed, had taken care of the testator, cooking and cleaning for him, for years. Another daughter is also unemployed and had been in contact with the family over the years. I have little to no problem with the law that requires that, if the will "does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Testator’s spouse or children, the court may, in its discretion, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Testator’s estate for the spouse or children." A father has a duty to take care of his children, even if they are adults, before he can be a complete asshole with his remaining estate.

[Dr. Drake]

I was just thinking of this the other day: my Canadian grandfather has a great deal of money, a will with contents unknown, and four surviving children (a fifth died with no issue and a sixth has two living children). Recipe for disaster, and I'm sure people will be coming out of the woodwork to contest the will.

Of the children, he dislikes between two and three at any one time, and my mother is basically still playing the role of abused child in her 60s. [Fact: as a child she was made to eat her own vomit; confess to fornication in front of her church at age 15 after—wait for it—being seen talking to a boy at school; made to go out naked in the snow as punishment; and of course physical beatings.] She martyrs herself for this abuser, cooking and cleaning for him as in the OP's case. Justifying it to herself by saying she'll get the inheritance, but the sociopathic bastard is no doubt going to leave her nothing because he wants to keep the land intact. (Side note: Mom gets major props for not passing on the cycle of abuse to me.)

Grandfather and aunt belong to incompatible insane religions. If she can prove she was disinherited because she exercised freedom of religion, would that override his wishes? Uncles one and two are stepchildren, adopted as small kids over 65 years ago but never really accepted. If they are excluded, do they have a case? Even if they're left a dollar or some such pittance? What about grandchildren? If my mother is excluded but, comfortable in her victim role, chooses not to sue, can I sue on her behalf, or my own? I know the specific answers depends on Alberta law, but the questions are interesting in their own right.

Should a man as bad as my grandfather have the right to dispose of his goods as he chooses? Personally, I kind of think he does, but I can also see the flip side.

[KarlGauss]

I think the OP is a fan of Testimentary Disposition - it's my stuff, I can do with it what I like, and the courts should not get to rewrite my will because they don't approve.

Why should a judge decide that you have to give some of your stuff to a kid that never loved you, and you feel would have just blown it on drugs, or a degree in Literature?
Indeed I am. Why would I want someone I've never met and has no idea of who I was or what I wanted determine who gets my hard-earned estate?

Having a judge decide is just another, particularly vile, form of interference in a free (and dead) person's life.

Inherited property is arguably the most antiquated concept that modern democratic-capitalist society retains.My God. Wait til you earn your first nickel, son.

[Really Not All That Bright]

I've earned a couple, Pop. Moreover, I stand to inherit a rather tidy sum myself one day in the (hopefully) distant future.

[villa]

Indeed I am. Why would I want someone I've never met and has no idea of who I was or what I wanted determine who gets my hard-earned estate?

Having a judge decide is just another, particularly vile, form of interference in a free (and dead) person's life.

My God. Wait til you earn your first nickel, son.

There's been state intereference in estates for years - this is nothing new. I'm with RNATB, and I have earned more than a few nickels in my time here. Inherited privilege and inherited wealth are problematic in a democratic society. However, they are hard to avoid without creating worse problems. But that doesn't mean we have to allow a system that a dead person gets to decide without restriction. Wills won't be enforced if they violate certain societal norms - I don't think, for example (and my property law class is a long time ago, and I never took Wills & Trusts other than as a bar review course), one can make a bequest dependent on a person not marrying a Jew.

This Canadian example seems a pretty extreme example, but the general principle that wills can be voided is a good one. If you want control over your property, give it away when alive. Once you're dead, you have no property, and I am opposed to giving your estate the same powers that the law gives to you.

[Hamlet]

Indeed I am. Why would I want someone I've never met and has no idea of who I was or what I wanted determine who gets my hard-earned estate?Saying the judge had no idea who the testator was ignores the fact the judge held hearings, listened to sworn testimony of the witnesses, and took items into evidence. He listened to both parties, and applied the facts to the law.

You make it sound like he flipped a coin or ignored evidence and was persuaded by feminine wiles. That's simply not true. Having a judge decide is just another, particularly vile, form of interference in a free (and dead) person's life.

My God. Wait til you earn your first nickel, son.I've earned millions of nickels, does that mean my opinion matters now?

[Hamlet]

I've earned a couple, Pop. Moreover, I stand to inherit a rather tidy sum myself one day in the (hopefully) distant future.I know people who know people. If you catch my drift.... :)

[Contrapuntal]

But that doesn't mean we have to allow a system that a dead person gets to decide without restriction. How many wills are written by dead people? When has a dead person ever decided anything? In my experience, people are alive when they write wills.

It would be better, of course, to give away the stuff when you are alive. This becomes problematic when you don't know when you are going to die.

[villa]

How many wills are written by dead people? When has a dead person ever decided anything? In my experience, people are alive when they write wills.

It would be better, of course, to give away the stuff when you are alive. This becomes problematic when you don't know when you are going to die.

Which is why we respect live people's actions to a greater extent than we do their determinations of what will happen in the future. The concept that you do not have exclusive domain over your property for perpetuity (http://en.wikipedia.org/wiki/Rule_against_perpetuities)is hardly unheard of in property law.

If my son chooses to marry a Jewish girl during my life, I could choose not to attend, not to give a gift, not to pay for any of the wedding, not to settle property on him. I can choose to change my will and write him out of it. What I cannot do is write a will (and have it enforceable) that says if at any stage my son marries a Jewish girl, he inherits nothing, and cancels any periodic payments that might be due from my estate.

The law lets us be dickheads, but won't necessarily assist in us being dickheads after our death. That's why, as I mentioned, this Canadian situation is apparently extreme, but the principle that your intentions carry less weight after your death is a pretty well established on in law.

[Steve MB]

One of daughters that he tried to disinherit is unemployed, had taken care of the testator, cooking and cleaning for him, for years.

Clearly, if these services were in any significant way elicited by the promise, or even the suggested expectation, of a significant inheritance, the deceased is guilty of obtaining them under false pretenses (i.e. fraud). How else can the fraudster be meaningfully rebuked at this point (and others deterred from similar fraud) other than by setting aside the will?

[Hamlet]

Clearly, if these services were in any significant way elicited by the promise, or even the suggested expectation, of a significant inheritance, the deceased is guilty of obtaining them under false pretenses (i.e. fraud). How else can the fraudster be meaningfully rebuked at this point (and others deterred from similar fraud) other than by setting aside the will?It was his daughter, not some home practicioner, so I'm not all too worried whether or not the testator had promised her an inheritance. There is no need, for me, to show the testator was guilty of "false pretenses" before giving the daughter her fair, and needed, share.

[Really Not All That Bright]

Wills won't be enforced if they violate certain societal norms - I don't think, for example (and my property law class is a long time ago, and I never took Wills & Trusts other than as a bar review course), one can make a bequest dependent on a person not marrying a Jew.
Required in Florida. Must be because we have so many old people.

I can hardly bear the excitement.

[Laudenum]

Word.

Old bastards should do their bequeathing while they're still alive and competent if they don't want a judge to step in and inject some common-sense/sanity. Once you're dead your wishes can be set aside at the wisdom of the courts; the public trusts the courts more then some dead asshole.

In Ireland, even if you give your stuff away just before dying, the Court can reverse the transactionsa and take it back, if it was clear that you were trying to avoid your spouse's legal right share.

[Laudenum]

Clearly, if these services were in any significant way elicited by the promise, or even the suggested expectation, of a significant inheritance, the deceased is guilty of obtaining them under false pretenses (i.e. fraud). How else can the fraudster be meaningfully rebuked at this point (and others deterred from similar fraud) other than by setting aside the will?

That's Equity that is right there.

Whole heap of case-law on that in Ireland - estoppel and the like.

[villa]

Required in Florida. Must be because we have so many old people.

I can hardly bear the excitement.

It is required as a law school course? Who requires it? I didn't know state bars had any authority over law schools, though I could be totally wrong. I spent three days learning it through BarBri, and have attempted to clean all of that crap out of my brain since.

[Really Not All That Bright]

The Florida Bar's accreditation rules prescribe that certain courses be requirements. Don't know how other states do it.

Mostly it's the stuff every school does anyway: torts, contracts, civil procedure and so on. Wills, Estates & Trusts was just tacked on last year.

I don't mind that much because it's one of those things friends and family will forever be asking me about once I graduate anyway.

[Yllaria]

I think one of the reasons that courts are given the power to adjust wills is to prevent testators from arranging their lives so that after they are gone one or more of their children are destitute and therefore a burden on the community. You don't get to decide that taxpayers can support four of your children so that you can give a bigger wad to another child.

[Contrapuntal]

I think one of the reasons that courts are given the power to adjust wills is to prevent testators from arranging their lives so that after they are gone one or more of their children are destitute and therefore a burden on the community. You don't get to decide that taxpayers can support four of your children so that you can give a bigger wad to another child.Why don't they just do that when the parent is alive? The child is no less a burden on the community then.

[Lemur866]

Yeah. Thing is, once you're dead, there's no you anymore. You don't exist. So your "right to decide what happens to your property" doesn't exist, because you don't exist. It's all the rest of us who have to decide what happens to your property.

And if your will goes against public policy, then us living folks can decide to tear up your will and start over.

If you want to totally control what happens to your stuff, better start handing it out NOW, while you're still alive. Because otherwise, you're relying on the rest of us. And since you're dead, you have no rights. Now, normally we decide to more or less follow what's written in your will, because, hey, why not. But that's for the living to decide. We don't have any moral obligation to YOU anymore.

[Bryan Ekers]

Of course, the major advantage to drafting a will in Canada remains the ability to bequeath boots to the head.

[Rigamarole]

That is outrageous. They're letting women own property now?

[Mighty_Girl]

Yea, it's the way in Puerto Rico too. IIRC, and lawyers would probably know this, it has to do with the civil/Napoleonic code vs some other code I can't remember (common law?). At least, that's what I remember my parents (both lawyers) telling me. The inheritance is divided in different parts, and one part is solely to be divided equally among established heirs (through blood or adoption). Only when there are no established heirs can those rules be altered (for example, a childless widow whose parents, grandparents, siblings, uncles, and aunts have died).

Which is why public cases (in the US) where the wife gets everything from the husband always puzzle me. That wouldn't happen in my homeland.Same here. If the spouse is legally recognized as so (they don't need to be married, per a somewhat-recent ruling of our Supreme Court), then she' owns 50% of the state, unless there was a pre-nup, and it is airtight. That 50% is not considered inheritance, seeing as the owner is still alive. The children, if there is a surviving spouse, will get up to 100% of the deceased's 50%, never less than half (cite (http://www.dr1.com/forums/593311-post6.html)).

I think that the custom and attitude of "I'll do what I want with my money when I die" is probably foreign to most people on earth.

[Hello Again]

If my son chooses to marry a Jewish girl during my life, I could choose not to attend, not to give a gift, not to pay for any of the wedding, not to settle property on him. I can choose to change my will and write him out of it. What I cannot do is write a will (and have it enforceable) that says if at any stage my son marries a Jewish girl, he inherits nothing, and cancels any periodic payments that might be due from my estate.

The law lets us be dickheads, but won't necessarily assist in us being dickheads after our death. That's why, as I mentioned, this Canadian situation is apparently extreme, but the principle that your intentions carry less weight after your death is a pretty well established on in law.

Actually, in Ohio, there was a case in which a will required a son to marry a Jewish woman within 7 years of his father's death or be disinherited, and this clause was upheld as not being an excessive restraint on marriage (the court opining that the son had a viable selection to choose from in the region). Shapira v. Union County Bank, 315 NE2d 825 (1974)

[villa]

Actually, in Ohio, there was a case in which a will required a son to marry a Jewish woman within 7 years of his father's death or be disinherited, and this clause was upheld as not being an excessive restraint on marriage (the court opining that the son had a viable selection to choose from in the region). Shapira v. Union County Bank, 315 NE2d 825 (1974)

I remember that (though not the name or where it happened) - I do believe courts have held it not to work the other way round though.

[KarlGrenze]

BTW, at least in PR, it is certainly possible for one of the heirs to be incredibly favored above the rest. Only one part of the inheritance is equally split. Another part can be split or given completely to one or more of the heirs, and yet another part can be given to whomever. So a heir can get 2/3 of the inheritance, plus her non-negotiable share. And it can get more "freebies", depending on how the other heirs feel about it*.

Remaining spouse gets half of what was legally jointly owned, which I was not counting as the inheritance before. Cars, houses, properies, and accounts with both of their names... surviving spouse gets half the value/ownership**.

*My family had to go through that when my grandfather died. He left most of it to his favorite, my aunt. The other children only got the bare minimum. They sucked it up. They were also nice to let my aunt keep some assets that could've, legally, be partitioned. They just wanted no more drama.

**My aunt tried to claim some of grandma's share, and had to be told, over and over, that no, granny was an equal (if not more) owner of the joint bank accounts.
The part about joint ownership concerns dad and I, as my mom is not a co-owner of their home (dad bought the place before he married). I am counting on my siblings to not be pricks and let my mom stay in the home, in the case that mom survives dad.

[Spoons]

The court's opinion (http://www.courts.gov.bc.ca/jdb-txt/SC/10/16/2010BCSC1678.htm).

In it the judge quotes the applicable statute, the caselaw interpreting that statute, and goes, in depth, over the parties, their responsibilities, duties, and prior gifts, etc.After reading the Werbenuk ruling that Hamlet linked to (i.e. the case under discussion in this thread), I have to agree with the trial judge in this case.

This sort of thing is hardly without precedent in Canadian law. As I expected, in Werbenuk, the Tataryn case was cited (Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807). Tataryn is one of the most important will variance cases in Canada; and it might be worthwhile to understand a bit about it. From the headnote (http://www.canlii.org/eliisa/highlight.do?text=tataryn&language=en&searchTitle=Advanced+Search&path=/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html) (which nicely summarizes everything):

The appellant [Mrs. Tataryn] and the testator [Mr. Tataryn] were married for 43 years. Through their joint efforts they amassed an estate held in the testator's name at the time of his death consisting of the house in which they lived, a rental property next door inherited from the testator's father and money in the bank. They had two sons, J and E. The testator did not wish to leave anything to J, whom he disliked, and feared that if he left any of his estate to his wife in her own right, she would pass it on to him. He made a will leaving his wife a life estate in the matrimonial house and making her the beneficiary of a discretionary trust of the income from the residue of the estate, with E as trustee. After her death, everything was to go to E. The appellant and J claimed against the estate under the Wills Variation Act, s. 2(1) of which provides that if the testator fails to make adequate provision for the proper maintenance and support of a surviving spouse and children, the court may order the provision from the estate that it considers "adequate, just and equitable in the circumstances". The trial judge revoked the gift to E of the house next door and granted the appellant a life estate in it; directed that J and E each receive an immediate gift of $10,000 out of the residue of the estate; and directed that when the appellant died, the residue of the estate be divided one‑third to J and two‑thirds to E....

Held: The appeal should be allowed and the following order substituted for that of the trial judge: (1) to the appellant: (a) title to the matrimonial home; (b) a life interest in the rental property; and (c) the entire residue of the estate after payment of the immediate gifts to the sons; (2) to each son: an immediate gift of $10,000; (3) upon the appellant's death, the rental property to be divided one‑third to J and two‑thirds to E.Tataryn has been cited well over 200 times in Canadian will variance cases. Not surprisingly, Werbenuk begins with a discussion of Tataryn, and proceeds through a couple of other relevant cases, at least one of which cites Tataryn in the quoted excerpt.

In short, there should be no outrage over the Werbenuk decision. This sort of thing has been done for quite some time. But change is possible: since one part of the Tataryn test considers the legislation (the Wills Variation Act), change could come from pressing elected legislators to change it. At this point, I think such a change would be unlikely, however.

[Hello Again]

I remember that (though not the name or where it happened) - I do believe courts have held it not to work the other way round though.
I don't believe that's completely correct.

In re Clayton's Estate 13 Pa. D. & C. 413 - the PA court said that a will clause disinheriting a son if he married a Roman Catholic woman was valid. That was in 1929 (and that's a long time ago), but as of In re Estate of Keffalas, 426 Pa. 432 , in 1967, it was affirmed as good law, stating,

a restriction on the religion of a potential spouse does not fall within the proscription of Drace v. Klinedinst, 275 Pa. 266, 118 A. 907 (1922), in which the gift is contingent upon the retention of a certain faith by the beneficiary"

[villa]

Interesting. I'll have to dig out my old notes on this to prove it to myself, but I have a recollection of reading cases going the other way. I could be totally wrong, or, as is more likely I think, there's probably cases all over the place in different states on this.

Of course, there's the option that I just completely misremember this part of law school, which is distinctly possible because I have used it for nothing since.

[Vihaga]

Remaining spouse gets half of what was legally jointly owned, which I was not counting as the inheritance before. Cars, houses, properies, and accounts with both of their names... surviving spouse gets half the value/ownership

This part I don't like. So, if a couple owns a house as their principal asset, their kids can force the surviving spouse out of it in order to sell it off and claim their "share"?

That seems kind of insane.

[alphaboi867]

...Which is why public cases (in the US) where the wife gets everything from the husband always puzzle me. That wouldn't happen in my homeland.

IIRC even in most common-law jurisdictions you have to leave at least 1/3rd of your estate to your spouse unless you have a prenup or are seperated. I don't think you're required to leave anything to your children, but I could be wrong. Can a parent's estate be sued for child support if no provision was made for underage children? :confused:

[CPomeroy]

This discussion has me wondering, does anyone know if there is a way to have a will reviewed by the appropriate legal authority before you die? Then you would have the option to revise it, if it was not approved, so that you got something at least close to what you really want.

[Euphonious Polemic]

This is probably too long for a title, but perhaps the OP could be re-named:

Thinking of making a will (that cuts out a spouse or child for no good reason, just because you're a complete bastard)? If you're in Canada, (or in any of the other man, many jurisdictions with a pile of case law about this) don't bother!

[KarlGrenze]

This part I don't like. So, if a couple owns a house as their principal asset, their kids can force the surviving spouse out of it in order to sell it off and claim their "share"?

That seems kind of insane.

The surviving spouse would still have majority claim over the house, and they all have to agree on what will be done. Remember, he/she gets 50%, while the other half is split among heirs. Legally, he/she has to agree to sell the house, and at the right price. Oh, they can bitch and moan all that they want, but that doesn't give them any legal standing. They'll have to go to courts over that. Or buy the other person's share.

My grandma agreed to sell hers (and grandpa's) house (his granddaughter bought it for her family). IIRC, even though they were family, they still had to pay market price. And the money was then split among all, with half of it going, of course, to granny. No worries, granny had moved on and was living somewhere else.

The problem is when only one of the names is the one in the deed, and that is the person who dies. Then yes, since that asset was not jointly owned, the surviving spouse has no claim (generally). Although there may be some way around it, I don't know.

[BwanaBob]

I remember that (though not the name or where it happened) - I do believe courts have held it not to work the other way round though.

How is that "allowable clause" different from one that says "if you don't marry, or if you marry a gentile you are disinherited"? I would think that should be just as illegal as the "marry a Jew and get nothing" will.

[Spoons]

This discussion has me wondering, does anyone know if there is a way to have a will reviewed by the appropriate legal authority before you die? Then you would have the option to revise it, if it was not approved, so that you got something at least close to what you really want.Typically, the lawyer who takes your instructions and drafts your will would advise you that something is okay, or that it is not okay and thus contestable. In the case of the latter, some testators will still ask to have the will drafted according to their wishes anyway ("Heck, Johnny won't put up a fight"), and it will be if the testator really wants it that way; but at least the testator knows that there is a problem.

Holographic (handwritten) wills, drafted without a lawyer's help or advice, are legal in some jurisdictions; and these often present a number of problems, for obvious reasons.

ETA on preview, to address this by Euphonious Polemic:

Thinking of making a will (that cuts out a spouse or child for no good reason, just because you're a complete bastard)? If you're in Canada, (or in any of the other man, many jurisdictions with a pile of case law about this) don't bother!No, you can still bother. Sometimes, your wishes will be upheld if challenged; sometimes not. And of course, no challenge may occur at all. It's chancy, but if you really want to, you are free to try.

[villa]

How is that "allowable clause" different from one that says "if you don't marry, or if you marry a gentile you are disinherited"? I would think that should be just as illegal as the "marry a Jew and get nothing" will.

Yes, there is probably inconsistency there. And I will say, I could be completely misremembering this class. And I think I am conflating with future interests in property - though I don't know what the difference is. Why does no one ask antitrust questions around here? :)

The state doesn't like getting into the enforcement of terms it views as against public policy. So saying to my son "don't marry a Jew" isn't something they can do anything about. But if I want to give him an interest in property that says "to son, for as long as you don't marry a Jew" then that is requiring the state to get involved - after my death, it is using the state to police him not marrying someone I would disapprove of. And that I don't think the state wants to get into. Similarly with covenants on property - lots of houses have covenants that run with them not to sell to black folk. They're unenforceable, though.

[Euphonious Polemic]

No problem. Let's make the thread title:

Thinking of making a will (that cuts out a spouse or child for no good reason, just because you're a complete bastard)? If you're in Canada, (or in any of the other man, many jurisdictions with a pile of case law about this), then you can still bother. Sometimes, your wishes will be upheld if challenged; sometimes not. And of course, no challenge may occur at all.

[Mighty_Girl]

Same here. And by "here", I mean the Dominican Rep. :smack:

[Ike Witt]

That is outrageous. They're letting women own property now?

Yeah, and wear pant and shoes.

[Gatopescado]

Fucking Canadians

[Nava]

Remaining spouse gets half of what was legally jointly owned, which I was not counting as the inheritance before. Cars, houses, properies, and accounts with both of their names... surviving spouse gets half the value/ownership**.

That's different in Spain: when something is jointly owned, the only part that gets split is the equal-share (unless a different division had already been established previously) of the deceased. My grandparents' flat had been in his name, so she inherited half and paid taxes on that half; their bank accounts had been joint, so she had half (the half she already owned), inherited one quarter (which she paid taxes on) and the other quarter is what got split between Mom and my aunt (who paid their own taxes on that and their quarters of the flat). And it is not possible for any of the parties to force others out: so long as one refuses to sell, it can't be sold, even if that party owns 1/32.

I "have signature" on my mother's bank accounts, and one thing we wanted to make sure was that I count as "second signatory" and not as "co-owner": what happens is that if she is incapacitated or dies I have access and I can close the accounts faster than if I didn't "have signature", but I'm not legally an owner.

[KarlGrenze]

That's different in Spain: when something is jointly owned, the only part that gets split is the equal-share (unless a different division had already been established previously) of the deceased. My grandparents' flat had been in his name, so she inherited half and paid taxes on that half; their bank accounts had been joint, so she had half (the half she already owned), inherited one quarter (which she paid taxes on) and the other quarter is what got split between Mom and my aunt (who paid their own taxes on that and their quarters of the flat). And it is not possible for any of the parties to force others out: so long as one refuses to sell, it can't be sold, even if that party owns 1/32.

I "have signature" on my mother's bank accounts, and one thing we wanted to make sure was that I count as "second signatory" and not as "co-owner": what happens is that if she is incapacitated or dies I have access and I can close the accounts faster than if I didn't "have signature", but I'm not legally an owner.

Eh Nava, it's the same (or very similar). Perhaps we misunderstood each other? Something is jointly owned, one of the owner dies, the surviving one is entitled to half of what was owned (or half of its value, in case it is sold/is money). That is what happened with grandpa and grandma's house.

I think what is different is that in the bank account, the surviving spouse gets only half, not the half plus quarter that you mentioned, unless the dead decided to do the "favor someone else after distributing the required part equally among the other heirs" thing in its will.

And again, I did mention that nobody drives anybody out, and everyone has to agree on selling. Perhaps I wasn't clear enough about that, but that's the case.

[Nava]

See, in the Spanish case, the half which the survivor is entitled to is not "inherited"; it was already his property. If my grandparents' house had been jointly owned, Grandma would now own 3/4, it would have gone like the jointly-owned account. There was no will, so the daughters are entitled to have half their father's estate distributed equally among themselves, and the surviving spouse is entitled to the other half. If Grandad wanted to arrange anything else, he needed a will - and the one he would have been able to disposess without a lot of signatures and complications is... Grandma. Wills under general law tend to be more a matter of details ("this particular piece of furniture goes to this child") than of resizing the actual chunks; the arguments arise, of course, when someone pipes up with "her chunk is bigger than mine!".

Only what the deceased owned is the deceased's estate; of what he owned jointly, only his part is in his estate. It's like having shares in a company, only without a piece of paper that says you have "X shares of Y total shares"; if a shareholder dies, the rest aren't his inheritors.

[KarlGrenze]

Nava, again, I mentioned not even I considered the half the survivor gets an "inheritance", and that I wasn't counting that like that. It was his/her given half, of course! It's the last (or near to last) sentence in one of my posts!

I think what is the thing is that the spouse is not considered a heir, unless specifically mentioned in the will in the "part the deceased gives to whomever" section. The remaining half of the joint bank account, the other half of the house, or a car. Zip, zilch, nothing. The spouse does not automatically get a share of that half.

This is why dad confided that in my once. Because mom would have no share in the home she leaves, if he dies. The house would be divided between sibs and I, mom would get nothing despite living there for over half her life. She'd be a tenant, instead of wife of an owner. Granted, through the same inheritance system she owns half of another house, but that is not her home. I don't think anything major should happen because my sibs do not know this, and even if they do, we're all good family, they love my mom, and wouldn't act like total scum.

[Cat Whisperer]

Fucking Canadians
Well, we do have to keep warm.

[Nava]

So a spouse is not an heir unless the deceased specifically makes the survivor an heir?

(I think I got confused by the "gets", fweiw.)

[clairobscur]

This part I don't like. So, if a couple owns a house as their principal asset, their kids can force the surviving spouse out of it in order to sell it off and claim their "share"?

That seems kind of insane.

Apparently, it isn't true in KarlGrenze country, but it is in France. Asuming the basic case where there wasn't any peculiar prenup, the house wasn't an heirloom of the deceased, there was no written will, etc... The surviving spouse would kept half the house (not as an inheritance, but because it's "her half") and the children would share the other half. If one of them wanted his money right now, contrarily to what happens in Spain according to Nava, the house would have to be sold (or the mother/other heirs come up with the money)

To avoid this unfortunately not uncommon occurence, the spouses can sign an agreement (at any time, my parents did so in their 50s) that changes the normal repartition :

Instead of getting her half, the surviving spouse gets only one quarter of the common property, but benefits of the usufruct of all of it. So, if the house is the only asset, she technically only owns 1/4 of it, but is entitled to use it (live in it but also rent it if she wants to) until her death.

I believe however that the concept of usufruct, used quite commonly in a number of situations here, isn't very common in anglo-saxon countries.

[elbows]

But I thought if the house was jointly owned, when one passed, it reverted to the surviving partner. Period. Never becoming part of the estate, not covered in the will. I know many people have it set this way, for this reason, and have seen it play out just as I've described. Is this not accurate?

[KarlGrenze]

So a spouse is not an heir unless the deceased specifically makes the survivor an heir?

(I think I got confused by the "gets", fweiw.)

Exactly. The surviving spouse retains his/her half, or gets half of the profits of whatever joint property is sold. So if the house is sold, she gets half the money. If there are joint accounts, only half is split amongst the heirs, the rest goes to the surviving spouse (in a new account set up).

[Spoons]

But I thought if the house was jointly owned, when one passed, it reverted to the surviving partner. Period. Never becoming part of the estate, not covered in the will. I know many people have it set this way, for this reason, and have seen it play out just as I've described. Is this not accurate?The question can be jurisdiction-specific. It seems to me that the discussion between Karl Grenze, Nava, and clairobscur is dealing with property law concepts in Puerto Rico, Spain, and France, respectively. I don't know about Puerto Rico, but I do know that Spain and France are civil law jurisdictions; and the questions under discussion may have their answers in the various civil codes of these places. I don't know, however.

Certainly, in your location, elbows, you're correct. Property held in joint tenancy by two spouses will pass to the surviving spouse on the death of the other spouse. Note that there can be more than two people on title in a joint tenancy situation (say, Mom, Dad, and Junior); and they need not be married (say, Mom and Junior); but the joint tenancy concept continues to operate regardless of who is on title: on the death of one of the title-holders, the remaining title-holder(s) automatically assume the property.

It is a good idea and very common, however, for the parties in a joint tenancy situation to designate a beneficiary for the property in their wills. Then, there should be no argument about what happens if all joint tenants die at the same time.

You'll notice I did not use the word "share." Joint tenancy is by far the most common form of property ownership for spouses and family members in Canada, but there is another: tenancy-in-common. If two or more people agree to own a property as tenants-in-common, they are agreeing to hold it under a share, or percentage, arrangement. If Bob, Charlie and Fred decide to buy a property, but Bob is putting up half the money, they may decide to own the property as tenants-in-common with Bob owning a 50% interest, and Charlie and Fred each owning 25%. In this situation, Fred can indeed will his share to a designated person--Fred's title will not automatically pass to Bob and Charlie.

This is a very general overview, elbows, of a couple of complicated Canadian property law concepts, but I hope it answers your question.

[Mighty_Girl]

So a spouse is not an heir unless the deceased specifically makes the survivor an heir?

Not in the Dominican Rep.

Also, I am pretty sure that any real estate inherited by one of the spouses during the marriage is the sole property of the inheritor, regardless of what type of marriage they have.

I am guessing most countries with Napoleonic codes function in a similar manner regarding this.

[KarlGrenze]

Puerto Rico follows Napoleonic/civil law.

Not in the Dominican Rep.

Also, I am pretty sure that any real estate inherited by one of the spouses during the marriage is the sole property of the inheritor, regardless of what type of marriage they have.

Same here. Mom inherited part of a property. If she were to die (which I hope doesn't happen anytime in the near future), I'll be her heir to her share. Dad gets nothing.

[elbows]

Thanks Spoons, that was very helpful.

[ENugent]

Certainly, in your location, elbows, you're correct. Property held in joint tenancy by two spouses will pass to the surviving spouse on the death of the other spouse. Note that there can be more than two people on title in a joint tenancy situation (say, Mom, Dad, and Junior); and they need not be married (say, Mom and Junior); but the joint tenancy concept continues to operate regardless of who is on title: on the death of one of the title-holders, the remaining title-holder(s) automatically assume the property.

It is a good idea and very common, however, for the parties in a joint tenancy situation to designate a beneficiary for the property in their wills. Then, there should be no argument about what happens if all joint tenants die at the same time.

You'll notice I did not use the word "share." Joint tenancy is by far the most common form of property ownership for spouses and family members in Canada, but there is another: tenancy-in-common. If two or more people agree to own a property as tenants-in-common, they are agreeing to hold it under a share, or percentage, arrangement. If Bob, Charlie and Fred decide to buy a property, but Bob is putting up half the money, they may decide to own the property as tenants-in-common with Bob owning a 50% interest, and Charlie and Fred each owning 25%. In this situation, Fred can indeed will his share to a designated person--Fred's title will not automatically pass to Bob and Charlie.

This is a very general overview, elbows, of a couple of complicated Canadian property law concepts, but I hope it answers your question.

To further refine this a bit for some (not all) US states - there is a third version called "tenancy by the entirety" which is ONLY for spouses. This usually behaves just like a joint tenancy - the main difference is that a joint tenant may sell his share while he is alive (even though he cannot will it away from the other joint tenant(s) at death). Selling his share converts the entire arrangement into a tenancy in common. In a tenancy by the entirety, neither spouse has the power to sell without the other.

[abused_always]

I suspect I'm not alone in my belief that when I die, I can exercise a final act of authority over my worldly possessions and direct, even from the grave so to speak, who does, and does not, receive them. I mean, isn't that what a last will and testament is all about? Isn't it?

If you have a will, or are thinking of making one, you may find this article (http://www.thestar.com/news/canada/article/899471--court-overturns-will-of-man-who-left-everything-to-his-son) of considerable interest (warning NSFTWWS*). It's a short piece but can be summarized even further as saying,'Who cares what you want done with your assets and possessions; the courts will decide what's best." That is to say, a Canadian man, a lout and boor to be sure, specified in his will that he wanted all his things - cash, property, valuables, etc. - to go to his son, and nothing to any of his four daughters. The latter appealed and, for reasons that would seem to defy both common sense and justice, the presiding judge ordered that the daughters be included as equal recipients in the divvying up of their late father's assets, i.e. who cares what the deceased wanted, I know better!

As I understand it, the judge felt that Dad was behaving towards his daughters in a manner inappropriate for the 21st century with respect to both his premorbid behaviour and in his last will and testament. Well, it's good to know that there's a least one judge out there who will make law instead of confining himself to interpreting it.

So, one more victory for the state over the individual. I can only pray that the judge's decision is appealed and reversed. I can hope.

*NSF Those With Weak Stomachs

I know the feeling. It's true about wills in Canada.
My dad passed recently and although his will stated that my brother and I were to inherit everything (which was nothing more than his friggin bills and funeral costs) and that his ex wife was to receive nothing...the well known phone company that he had worked at decided that they were above the law and gave the life insurance and his pension to her anyway.
He and his ex had even signed papers a few years back stating that she would give up her dower rights and that she would not be able to receive his life insurance and pension...but guess who's rich now...and guess who gets stuck with his bills?
Why write a will? To make the lawyers richer of course...that's all the wills are good for...same as separation agreements...and letters to a certain phone company...all for naught.

[Really Not All That Bright]

Life insurance and pensions have nothing to do with wills. Beneficiaries are specified within the respective policies.

[Peremensoe]

Fuck that. Once you're dead, you have no stuff.

So why should any of your offspring get anything? Why not let the judge assign it all to the state, or whatever else he likes? Why should you care? You're dead.

In my experience, people are alive when they write wills.

Exactly. The voiding of a will means the violation of the intentions of the living person who wrote it. If you wouldn't arbitrarily seize his property during his life, it can't become appropriate just because he's now conveniently out of your way.

[BigT]

I've earned a couple, Pop. Moreover, I stand to inherit a rather tidy sum myself one day in the (hopefully) distant future.

So, it's antiquated except when the money is willed to you. Awesome

[Really Not All That Bright]

So why should any of your offspring get anything? Why not let the judge assign it all to the state, or whatever else he likes? Why should you care? You're dead.
If you read the rest of my posts in this thread you'd notice that this is exactly my point.
So, it's antiquated except when the money is willed to you. Awesome
Uh, no. My point is that if the law was changed tomorrow and my inheritance went to Uncle Sam, I'd be fine with that.

[Cat Whisperer]

I know the feeling. It's true about wills in Canada.
My dad passed recently and although his will stated that my brother and I were to inherit everything (which was nothing more than his friggin bills and funeral costs) and that his ex wife was to receive nothing...the well known phone company that he had worked at decided that they were above the law and gave the life insurance and his pension to her anyway.
He and his ex had even signed papers a few years back stating that she would give up her dower rights and that she would not be able to receive his life insurance and pension...but guess who's rich now...and guess who gets stuck with his bills?
Why write a will? To make the lawyers richer of course...that's all the wills are good for...same as separation agreements...and letters to a certain phone company...all for naught.
You're not stuck with his bills. You can't be held responsible for the debts owed by an estate - we were in the same position, and I paid zero dollars of my dad's large debt. If someone's telling you differently, get an inheritance lawyer.

[Really Not All That Bright]

The estate is stuck with his bills. The ex is getting the pension and life insurance, so she doesn't have to pay them... but the estate does, which means it's coming out of a_a's cut.

[Cat Whisperer]

Like I said, a_a needs to talk to an estate lawyer. Since she signed papers saying she was relinquishing claim to the insurance, it sounds like it should go to his children instead. She wouldn't be liable for his debts anyway since they were divorced, assuming her name wasn't on any of the credit cards or whatever.

[Peremensoe]

If you read the rest of my posts in this thread you'd notice that this is exactly my point.

Uh, no. My point is that if the law was changed tomorrow and my inheritance went to Uncle Sam, I'd be fine with that.

I did read them. I'm not trying to convince you, I'm trying to illustrate the wrongness of your position for other readers.

Reassigning a bequeathal is not essentially different than seizing it, and a seizure after death is not essentially different than a seizure before.

[kidchameleon]

Uh, no. My point is that if the law was changed tomorrow and my inheritance went to Uncle Sam, I'd be fine with that.

That always seems to change when family heirlooms and mementos are in the picture.

[saoirse]

The state doesn't like getting into the enforcement of terms it views as against public policy. So saying to my son "don't marry a Jew" isn't something they can do anything about. But if I want to give him an interest in property that says "to son, for as long as you don't marry a Jew" then that is requiring the state to get involved - after my death, it is using the state to police him not marrying someone I would disapprove of. And that I don't think the state wants to get into.

How long can the estate hold an inheritor to something like that? If 20 years later, Junior retires to Florida, meets a Jewish woman his own age, and marries her, is there any waythe estate can demand its monkey back? Or suppose Junkior marries a Jewish girl, as the will directs him, but then divorces her years leater and marries a gentile?

[Euphonious Polemic]

How long can the estate hold an inheritor to something like that? If 20 years later, Junior retires to Florida, meets a Jewish woman his own age, and marries her, is there any waythe estate can demand its monkey back? Or suppose Junkior marries a Jewish girl, as the will directs him, but then divorces her years leater and marries a gentile?

After 20 years, I think the monkey would be dead. They don't usually live that long.

[Shmendrik]

If you read the rest of my posts in this thread you'd notice that this is exactly my point.

Uh, no. My point is that if the law was changed tomorrow and my inheritance went to Uncle Sam, I'd be fine with that.

No need to wait for the law to change. You can just check off the box on your tax forms which lets you make a gift to the federal government and give them your inheritance. That's what you're planning on, right?

[Really Not All That Bright]

People who recycle this stupid-ass argument unironically need to be punched in the face. No, you fucking idiot.

[kidchameleon]

Way to make a difference.

[Really Not All That Bright]

Do you think taxes should be higher?

[kidchameleon]

Do you think taxes should be higher?

Nope.

[Shmendrik]

People who recycle this stupid-ass argument unironically need to be punched in the face. No, you fucking idiot.

So, you want the government to take your money, but you wouldn't give it to them voluntarily? Sounds like some kind of kinky financial S&M thing. Good times.

[villa]

So, you want the government to take your money, but you wouldn't give it to them voluntarily? Sounds like some kind of kinky financial S&M thing. Good times.

Or, alternatively, it sounds like a grown up recognition of reality in the world, not a pathetic childish attempt at point scoring. An individual handing his inheritance over won't alter anything, much the same as the idiotic bleating of "if you don't like your tax cuts (which crippled the economy) give them back." Giving them back does nothing if it is done by one person, two people, or even 10% of people. And because there are enough selfish tossers like you that will happily see the economy go down the shitter as long as you have your twinkies and premium cable, as well as plenty of people who will lie blatantly that they would give it back but won't, then the adult recognition is that it is perfectly consistent to say "I think income tax rates should be higher" or "I think the government should tax estates more" without also having to voluntarily right checks to fund the required government spending that cheapskate cumstains seek to avoid funding.

[Really Not All That Bright]

For the record, I would also not give up Twinkies to save the economy. Sometimes, the price is just too high.

[Shmendrik]

Or, alternatively, it sounds like a grown up recognition of reality in the world, not a pathetic childish attempt at point scoring. An individual handing his inheritance over won't alter anything, much the same as the idiotic bleating of "if you don't like your tax cuts (which crippled the economy) give them back." Giving them back does nothing if it is done by one person, two people, or even 10% of people.

That's bullshit. I guess none of you guys use CFL's or recycle because there's no law forcing everyone to do it, right?

[villa]

That's bullshit. I guess none of you guys use CFL's or recycle because there's no law forcing everyone to do it, right?

Sometimes individual action works. Sometimes it doesn't. The world is not as simply as your kindergarten mentality sees it.

[villa]

For the record, I would also not give up Twinkies to save the economy. Sometimes, the price is just too high.

I prefer Snowballs. The Hostess cake product, as opposed to the sexual act. Which I am not a fan of, at least not if it involves me.

[Kimstu]

Reassigning a bequeathal is not essentially different than seizing it, and a seizure after death is not essentially different than a seizure before.

Nonsense. Of course it makes an essential difference whether the law intervenes in the assignment of the property before or after the death of the original owner. After you're dead, you don't have any property.

It is, of course, absolutely correct that the law can't tell you how to distribute your legally owned property while you're alive (after taxes and other legal obligations, that is), since you are the undisputed legal owner of that property.

However, the second you join the choir invisible, you aren't the undisputed owner of that property any more. In fact, you aren't any kind of owner of that property anymore.

The owner(s) of that property are now the designated beneficiaries of your will, AND/OR other persons legally entitled to inherit from you, and/or the government if inheritance taxes apply. And there is no reason to consider any of those owners a priori "undisputed".

If you don't like that simple fact of life, the remedy is equally simple: don't die. Problem solved.

[kidchameleon]

I wonder if you could get around some of these restrictions by incorporating one's possession and then distributing stock to those heirs one wants to have the most.

[Acsenray]

So a spouse is not an heir unless the deceased specifically makes the survivor an heir?

From what I remember from property law, in most American jurisdictions, there are heirs only when a person dies intestate (without a will). Those designated to inherit by a will are not heirs; they are devisees or beneficiaries.

[KarlGrenze]

From what I remember from property law, in most American jurisdictions, there are heirs only when a person dies intestate (without a will). Those designated to inherit by a will are not heirs; they are devisees or beneficiaries.

acsenray, she was talking, IIRC, of Puerto Rico, which has a civil code and does not follow the same laws in other states regarding things like wills (which is what is being discussed here).

And in PR, if my dad where to die tomorrow (knocks wood, shouldn't happen in a while), my mom would not receive a penny from his estate (whatever that may be), unless my dad has previously written a will declaring that mom will inherit X amount from him.

[Frank]

He and his ex had even signed papers a few years back stating that she would give up her dower rights and that she would not be able to receive his life insurance and pension...
His life insurance goes to the beneficiary of record. Regardless of what papers she and he may have signed, he needed to change the beneficiary. (Signing the papers may have been a legal prerequisite to that change, especially if they were still married at the time, but he still needed to actually make the change.)

I'll admit to surprise that the company is paying a widow's pension to an ex-wife, but unless you and your brother are still minors, you wouldn't be getting any benefit from that anyway.

In general, neither life insurance nor a pension are part of an estate--they are seperate benefits under separate rules.

[kaylasdad99]

If you don't like that simple fact of life, the remedy is equally simple: don't die. Problem solved.
"Don't actually have any property" works, too.

[Spoons]

Since she signed papers saying she was relinquishing claim to the insurance, it sounds like it should go to his children instead.To address this point, life insurance policies often are not included as part of a testator's estate. They have a designated beneficiary (which can be the estate, which is how they can form part of it); who receives the proceeds of the policy when the policyholder dies. The beneficiary of the policy is not named in the will, but he or she must be named on the policy.

As for "signing papers," I'd be curious to know just what kind of papers were signed. The reason is that generally, only the policyholder can change the designated beneficiary--or, in other words, the beneficiary has no say in whether they continue to be the beneficiary. I've changed the beneficiary on the life policies I hold--the insurance company supplied me with the forms they required, I filled them out and signed them, and mailed them back. I needed no signature or other agreement from the former beneficiary: my ex-wife.

I am, however, working on a matter where a handwritten, home-drafted "agreement" is key to a matter in issue. Is this "signed paper" enforceable to the degree required to relinquish the wife's claim to her husband's property in case of breakup, or his estate in case of his death? I don't think so. It goes against various statutes ranging from the Insurance Act through the Wills Act to the Marital Property Act (plus a few others), is not in the prescribed form for exceptions to the rules in the Acts, and lacks a number of other elements that might make it valid. I'll add that the facts of the matter make it appear that this document was signed under duress, which is yet another point not in the husband's favour. Anyway, the point is that here is a "signed paper" that is possibly much like a_a is describing: utterly unenforceable, despite the parties thinking that having a "signed paper" magically makes the agreement valid.

[Cat Whisperer]

Good information, Spoons, and (I think) re-inforcing my opinion that a_a needs to be complaining to an actual estate lawyer rather than an internet message board. :)

[Spoons]

Good information, Spoons, and (I think) re-inforcing my opinion that a_a needs to be complaining to an actual estate lawyer rather than an internet message board. :)Well, a lawyer of some sort, certainly. Given that insurance and pensions (the subjects of a_a's complaint) involve contracts more than estates do, a lawyer more experienced in contract law may be better. Regardless, a_a should consult a lawyer anyway--no doubt such a professional could at least examine the "signed papers" and explain why they were invalid to do what they purported to.