Canadian Dopers: Inheritance law questions.

Factual Questions
1

My uncle’s kids are starting to squabble about “their inheritance”, even before he’s actually ill, let alone dying. The kids are actually step-kids, and he has no natural ones of his own. It occurred to me when my mother was telling me “the latest” about it, that she is his legal next-of-kin, not any of them. Further, my siblings, I, and 2 of my cousins are next. We all or each, individually have more legal rights than any of the step-kids. Any of us could step in and stop the squabbling. At least according to the “English Common Law” that’s been altered by every national, provincial, state, and local jurisdiction that has ever separated us “people separated by a common language”.

Where can I find a website on Canadian inheritance law, specifically Alberta & BC? Just general info, no actual legal advice. We just want to find out what sort of legal muscle we could bring to bear if the “gold-digger” step-cousin doesn’t respect my uncle’s wishes.

My Google Fu was too weak to find anything except lawyers’ websites, where we could get any question answered (crappily) for free, or definitively (for a high fee). I’m sure, if “push comes to shove”, the step-cousins have their own lawyers to do it “for a fee”. Us actual next-of-kin don’t need any of his money (such as it is), and so can’t justify the expense of retaining one. We just want to find something in AB or BC law that lets us be the “800 lb gorilla in the room” that causes “cousin gold-digger”, and the “Ronette” [yes I’m stealing shamelessly from a recent thread, but that’s her] to be more civil to each other.

Further info may be available if there are any questions, provided it doesn’t violate any of the parties’ privacy. I’m not going to make my family drama an internet circus, with names. The checkout counter tabloids have more scandalous drama, and hotter participants, besides.

2

Does your uncle have a will? That should answer your questions.

The following resources will help you with legal matters about wills in Alberta:

Wills Act, RSA 2000, c. W-12. This is the legislation that explains about wills, and gifts that occur as a result of a will.

The Intestate Succession Act, RSA 2000, c. I-10 explains more about who gets what when one dies without a will.

Legal Aid Alberta has some general information on wills and estates in Alberta.

Student Legal Services Edmonton (a project of the U of Alberta’s Faculty of Law) has some good general information also. Note especially the clear information on “Dying Without a Will,” about two-thirds down the page.

If you can stand a little free advice from a lawyer (i.e. me), you would do well to retain your own counsel. Especially if your step-cousins have retained one, I’d suggest you don’t want to deal with this without somebody who knows the ins and outs of wills and estates law in the necessary jurisdictions. Or, to put it in the terms you yourself used, your step-cousins’ lawyer will be the 800-pound gorilla in the room; you will not, no matter what resources you find. He or she will simply know too much.

The above resources will give you a good start on generalities, and questions to ask, but reasonably-priced lawyers who will give good, definitive answers specific to your situation are out there. You can call the Law Society of the province in question (or search their websites) for referrals. When you make contact, don’t be afraid to ask about fees–I handle such questions every day, and I’m not bothered by somebody who tells me that they cannot afford me. It happens.

But at this point, it seems to me you’re looking for information specific to your situation. “Lawyer up,” as they say, and get the correct information.

3

Law is always fun to read about.
http://www.duhaime.org/LegalResources/ElderLawWillsTrustsEstates.aspx

Again, get a real lawyer.

Off the top of my head, IANAL, but the wife gets half and the kids split the other half in most Canadian jurisdictions.
If these are not his kids and he has never adopted them, then they would have no claim.
If there is no wife any more (you don’t mention one) then her kids would have no claim. If she’s still kicking, she would probably at least get life tenancy, if not full inheritance of the family home. If he kicks off and she’s still around, she gets it all and then her kids get it from her.

The real question is - have they been treated as “his kids”. Did he stand in as parent, support them, sign as parent for school outings, approve medical care, generally have a relationship as father with them for much of their early life? I know for child support purposes that counts. Not sure what the legal situation is for inheritance law; I suspect it is evolving and a good lawyer could do wonders with the issue. Hence the need for real legal advice by a lawyer in the jurisdiction.

Of course, the will trumps all; provided it was written with good legal advice to prevent errors that could invalidate it.

Nothing makes for a good family squabble like an inheritance fight. If this is ramping up before he’s even got one foot in the grave, it’ll be a doozy!

4

Has he adopted them?

5

No kidding. Does your uncle know about the squabbling, Cheshire? Can he put a stop to it, maybe by having a will made up and letting everyone know how it’s going to be?

6

Yeah, I remember one where the wife was not really “ex” even though it had been 10 years; the live-in gf had the adult kids asking her to leave “their” house, the “ex” was still listed ass pension beneficiary and life insurance beneficiary, and the kids came over and started to haul away the boat and trailer.

Fortunately the live-in as most recent “common law” was able to get the Canada Pension Plan survivor benefit.

Of course, it was the guy’s fault because he was in serious denial about the need to address anything about end-of-life, even when he knew he had cancer.

7

Yes, he knows. Yes, his will is made. He just doesn’t want to get into their squabbles (even if it directly impacts him, like it does, now). The only squabblers are amongst the step-cousins. [this should also answer some previous posters’ questions] All of us actual next-of-kin relatives are perfectly comfortable with him leaving his entire estate (whatever it might amount to) to the step-cousins. He’s thought of them, and treated them, as his kids, since he married my aunt (their mother), before I was born. We don’t want anything at all from his estate. Polly and Judy are just being assholes [Ronettes, see the “Ron Thread”] about “their inheritance”, and Judy is actually “helping” pick out his next home (after leaving the home he and their mother lived in) because he’s getting too “old and decrepit” to live there by himself. Us actual blood relatives just want to make sure he gets taken care of properly. He’s got one step-daughter, whom my mother is in direct contact with (besides her brother), who has the same goal. We just want to see that she is the step-kid that gets listened to by whomever takes care of him, because she’s the only one who isn’t looking to see that “my inheritance” isn’t “wasted”. My thought, here, was that since my mother is biologically his “next-of-kin”, and his 2 sisters’ kids (which includes me) are next in line, we likely have a certain amount of legal weight we could use to “sit on” Polly and Judy if they get too nasty about anything. Mom’s going to contact Sunny (the good one) and offer our biological/legal weight, if needed, as soon as I can find out how much weight we actually have. Which returns to the OP question: How much weight do we have under Alberta & BC inheritance law?
BTW, Cat Whisperer, this is the uncle I said to “say hi to” in the PM I sent you a bit ago…

8

Your uncle has a will, who is the executor of that will and does he have Power of Attorney’s for property and for personal care, do these even apply in Alberta or BC.

For peace of mind, maybe the executor or POA should be a third party, someone like ourself or another relative or maybe even shared with one of the step-child.

9

The term “next-of-kin” does not come into play unless the deceased has no will. Example definition.

Your uncle is not deceased and he does have a will, so next-of-kin status has no power unless Canada has some laws specific to the term. But generally, the laws of intestacy will not be involved unless for some reason his will is declared invalid. Since he’s not even sick, that might be a stretch. There is no “inheritance” to squabble over until he’s dead. He could very well spend it all well before he dies.

If for some reason you’re concerned he won’t get proper medical care in the event he someday becomes incapacitated and cannot make his own decisions, suggest he get a healthcare power of attorney (living will) and a durable power of attorney for his finances, just in case.

Why are you involved in any of this business at all? It’s his money/assets and he has already decided how to dispose of them in his will. What’s to squabble about? If he doesn’t have a problem with his stepchildren, why do you? If he’s “impacted” in some way by the behavior of the cousins (i.e., being mistreated or abused), you need to report the situation to the proper authorities, not whinge about an inheritance that doesn’t even exist yet. Sounds to me like you just don’t like the cousins.

N.B. I am a lawyer, but I am not your lawyer, or anyone’s lawyer and I’m not licensed to practice in Canada and this is not legal advice - just common sense stuff found on an anonymous message board and I could be lying. Conduct yourself accordingly.

10

I’d say, very little. Given that the uncle has a will in the OP’s scenario, I had a quick look through Alberta’s Wills Act, which applies when there is a will. Nowhere does it mention that a blood relative has any more rights than a non-blood relative * ; so, generally speaking, if the testator has a valid will, then the testator’s wishes shall be carried out. Applied to the OP’s case, the uncle’s estate will be divided according to what the uncle put in his will, regardless of blood ties. To put it another way, if the uncle’s will states that his entire estate is to go to (for example), the Cancer Society; then his entire estate will go to the Cancer Society, regardless of what the OP (a blood relative) or the step-cousins (non-blood relatives) feel should happen.

Of course, wills can be challenged, but it can be difficult to challenge a properly drafted, witnessed, and signed will. I won’t say more about challenging a will, since it is a complicated area, and very fact-dependent, and this is not the place to give legal advice specific to a situation.

However, I will second the idea of a living will (called a “personal directive” in Alberta) and a power of attorney. These can be of great benefit if the OP’s uncle becomes incapacitated in some way. Assuming they have been drafted and executed correctly, they can keep the squabbling over Uncle’s affairs to a minimum while Uncle is still alive. Here is a link to an Alberta Government FAQ page on personal directives, with a link off the third question to information on powers of attorney.

  • Note that Alberta’s Intestate Succession Act, used when a person dies without a will, does divide decedents’ estates based on blood ties. But since the OP’s uncle has a will, the Intestate Succession Act and its provisions for blood kin does not apply here.
11

“He died intestate…”
“Ooooh, sounds painful!”

Really, what he needs to think about is what is mentioned above; who will make what decisions about his health and finances if/when he is incapacitated. Power of attorney, living will, etc. Truly, those decisions should not be made by someone who is concerned over how much money will be left based on their decisions…

My general impresion in Canada is that if you have any money when you go into a personal care home, the home will gobble up as much as they can in fees before the government will step in to pay the rest. One issue will be the quality of care; the better homes cost more, and extra services also cost. You want those decisions to be made in the person’s interest, not their heirs.

If their financial strategy is to sit around waiting for an inheritance, it’s probably a waste of time. Someone today has a good chance of lasting well into their 80’s and 90’s. That puts the kids usually into the 50’s to possibly 70’s by the time that ship comes in… Just in time to pay for their own care home.

If someone is a dick, well… you know what they say, you can choose your friends, you ca’t choose your family. Dick or not, they are the heirs according to the will - so far. Since it could be 10 or 20 years before they get anything, maybe they should be respectful and friendly to dear old “dad”. He can still change his will.

12

I want to thank all of you who posted advice to my thread here. I, my mother, and the “good” step-cousin have looked at links and discussed what you have said with my uncle, and changes to his will to prevent the gold-diggers from being able to circumvent his wishes are now in the process of being made. The gold-diggers will still get their fair share, but they will be prevented from making trouble after he dies.

Thank you all once again. Consider the problem resolved satisfactorily to everyone who wants what’s best for him.