Question about a will (NOT seeking legal advice)

In My Humble Opinion
21

I like the idea that the SO and I came up with. We’re going to broach my mother about this idea when she writes up a will in the next month or so.

My mother has gathered quite a nest egg. In the event of her death, my brother and I will split everything evenly. I have a SO, my brother doesn’t - neither my brother nor I have children.

Should I die before my mother, then my mother dies, my SO would get 1/4 of the inheritance, and my brother would get 3/4. We figured it out like this:

If my mother died before I did, I’d get half, and my brother would get half. Within my half, my SO would “enjoy” half of that, so 1/4.

My SO has been in my life and actively participated in my family insanity for 7 years. He’s basically been another son to my mom. I would like to think that she’d care about him enough to want to take care of him a bit too. But not enough that he’d get 1/2, so he’d be at the same “level” as my brother, because that’s not true.

The SO would get his share that he would normally get if my mother died and I was still alive and he wouldn’t get “elevated” to the same status as my brother if I died before my mother.

Works for us. We’ll see if my mom and brother go for it too.

I must note that if my brother got a SO that was as loved and cherished as my SO, I wouldn’t mind her getting 1/4 if my brother died before my mother. Just because you get married and don’t have children doesn’t mean you aren’t a part of the family if your spouse dies. If I died, I know my SO would still be a close part of my family just because that’s his relationship with them. If my brother’s SO is the same way then I think she should get the same consideration.

22

Well, I guess my opinion on what is typically done is not the same as most people’s here. That’s okay; it’s my opinion, and I can continue to hold it. :slight_smile:

I’ve been in touch with my buddy Son over the past day or two though, and we have been watching the thread. I’ll address one point that came up in the thread, and then talk about what Son has done.

In my most recent discussion with Son, I asked this. Apparently, Father and Son’s Wife have a great relationship–the three of them have vacationed together, Son’s Wife has always been welcome in Father’s home, and Father takes an interest in what she does both professionally and as her hobbies. Among his hobby is growing roses, and he takes pleasure in presenting her with the nicest ones from his garden. She thinks the world of him–apparently, he taught her to waltz, and how to make martinis–and almost sees him as her own Dad. Her own father divorced her mother years ago, and has been in touch only once in the last 20 years. Father is the Dad she never had apparently. There are many examples, but in short, Father seems to feel that Son’s Wife is indeed part of the family, and Son’s Wife thinks Father is a great guy.

This is why, when Son spoke with his Dad today (and reported the conversation to me later), Father was rather shocked and surprised to hear that Daughter expected all to go to her in case of Son’s premature death. He promised Son that when he spoke with his lawyer regarding his will, which he will be doing shortly, he will make sure that Son’s Wife is remembered somehow if Son dies prematurely. I don’t know how and it’s not my business to know how, but something will be done.

Damage has been done, however. Son and his wife are considering taking the Grandkids out of their will totally. With no kids, they had left all to them. Their discussions concern which charities they should support with their estate when the time comes. I’m not getting involved; I kind of hope that they think about it a long while and that this family is not irreparably damaged. But we’ll have to see.

But I owe you all many thanks for your thoughts and comments. They were all useful, and I appreciate your contributions very much. Thanks again!

23

I think “father” needs a new lawyer. A good lawyer would have anticipated this type of circumstance and asked how “father” wanted to address it.

24

This amazes me. As if their minor nieces and nephews have anything to do with it, such that they should be punished in the stead of their mother.

I read stuff like this, and I hope my parents pile everything they own in the yard as set fire to it.

25

I agree with you, but I’m also hoping that Son and Son’s Wife let a little time go by, realize the Grandkids are really innocents in this squabble, and keep things the way they are. Well, I won’t quibble if they choose to support a favourite charity or two also, but you know what I mean.

26

IANAL, but it sems to me than a real lawyer is not doing their job properly unless the will includes provisions for how to disburse the assets if a beneficiary is no longer around to collect. But to what those provisions should be…

Since this is a request for opinions, mine it that it doesn’t matter one whit what is “most common” So long as Dad is competent, he can disburse his maney any way he chooses. What others do or don’t do should have no bearing whatsoever, unless what Dad wants to do is so bizarre that it might be overturned by a court. I can’t see how choosing either of these alternatives would be considered that bizarre.

27

Spoons, hope you don’t a late comment on this inquiry - but some provinces address this very point in their Wills Act. However, they’re not uniform - so it may depend on where your friend’s father lives.

For example, The Wills Act, 1996 of Saskatchewan provides:

However, the equivalent Alberta provision does not include spouses in this provision, only children:

So, what is customary may depend in part on the province in which the testator lives. As well, both of these provisions are subject to a contrary intention in the will, so the testator could decide this issue for himself in the will.

28

I must have mis-read the OP. Its late, my eyes are tired. I thought that currently, if Father dies first, its a 50/50 split between kids. If son dies first, and then the father dies, the father’s estate leaves half to his son’s estate, where from there it goes to the beneficiaries of the sons estate. I guess I misread this, because the jist I got was that the daughter is all pissy about this and is looking for a way connive more than her half should her brother die as well as getting all up and manipulative in somebody elses will, instead of her writing her own will which leaves 100% of her estate to her own kids.
(Valium would have helped that bash. I say Hey daughter, take a walk off the short pier. I say Hey, Darlin’…take the walk off the short pier…")

I’m sure its not all “Hurry up and die, Dad. I’ve got bills to pay. Here, let me shovel dirt in your face for you.” Only I have a sister like that one. I must be projecting, because after I read the OP, I thought “Hmmm. And if the daughter died first, everyone else would be happy. That was easy.”
To answer the question about ‘typically done’, it seems ‘typically done’ to me in a pigs eye*. I guess all that talk about ‘gaining a daughter’ at the wedding was just fluff, right? Does the daughter-in-law have a close relationship with the father? Is there a place setting for her at his house on the holidays or at her house for him? Who’s there for each other as family? And ultimately isn’t it the father’s money? (Piss it away on a Cruise, Dad. Its Yours. Any of your kids don’t like it, blow 'em a kiss good-bye from the aft deck before getting yourself a ‘Drink or the Day’. You Earned It.)

*Assumes pig has glowing red eyes & hangs out outside of windows in Amityville Long Island…

29

I’m in the same position as Son. If I predecease my mother, my husband gets nothing from her estate and my siblings benefit.

I consider it another example of how what people say they believe regarding marriage and what they actually believe are two different things.

30

No, a late comment is very welcome, and I should have thought to look to the applicable Wills Act myself (which in this case is Ontario). So I guess I owe myself a :smack: !

But since my OP, a few things have happened, and I should bring folks up to date. I guess it was last October when I heard from Son that Father had a lawyer redo Father’s will, and Father now has it written in the will that Son’s Wife stands to inherit something if Son predeceases Father. This, of course, is the “contrary intention” that is referred to in the posted legislation. Although I haven’t yet looked at the applicable Ontario legislation (another :smack: ), I’m sure something about “contrary intention” is in there too.

I’m unsure what the “something” that Father has earmarked for Son’s Wife is, but I don’t believe (based on what Son said) it will be just a token. I didn’t want to pry, but the important thing is that Son is happy, and Son’s Wife, while also happy, also feels she truly is part of the family (which addresses the points raised recently by jsgoddess and Count Blucher). No reports on what Daughter thinks though.

31

Nothing like a little inheritance to bring out the vampire in siblings, is there?

Two families I know are going through this very thing right now, with varying degrees of amity. Fairly large sums of money are involved and several lawyers are going to do very well out what should be simple affairs. However, family issues are often acted out over money and property – siblings tend to fall into their old, childhood ways and act like, well, act like bratty children.

It is odd that people don’t seem to realize that until Father’s death, Son and Daughter have no rights over what Father owns. You are not the heir while the testator lives – you are the heir-apparent. Like Prince Charles, you know?

Still, Daughter was correct. In most jurisdictions, her understanding is the way things are usually done and if Father want’s Son’sWife to inherit, he must specify it in his will.

Daughter’s children are even more removed from any right and are certainly not in any way responsible for what Father does. Let us hope that Son gets over his snit and realizes the children having nothing to do with anything. Of course, once Father is dead and Son owns something, it will then be his right and privilege to do what he wants with it. Even to be snotty to his nieces and nephews.

32

In Ontario, if you leave something in your will to a person who happens to die before you, then most of the time the gift will not go to that person’s estate. However, if the person who died before you was your child, grandchild, brother, or sister, then notwithstanding the above, the gift will survive despite the person already being dead, and will be distributed through that person’s estate as if that person had died without a will.

When applied to Spoons’ Ontario fact scenario, the daughter would get half, and the pre-deceased son’s wife would get half. It would get a little more complicated if the pre-deceased son had children, for then the half would be split by the wife and kids using a formula based on the number of kids.

The law let’s you get around this provision if you want. All you have to do is clearly state in your will what it is that you want and what it is that you do not want.

To answer Spoons’ question: “What do families “typically” do?”, here in Ontario I have found that most people do not want any of their estate going to an in-law. In general, people are concerned that if a marriage breaks down without a divorce, then the estranged in-law could take at the expense of another sibling’s kids trying to get through college. Blood being thicker than water, etc.

Note that although I put the question to a testator, I do not tell the testator what most people decide.

Which ever way a person decides, I keep notes on our discussion, and I put a clause in the will that clearly sets out what the person wants, so that there will not be any confusion.

Succession Law Reform Act
R.S.O. 1990, CHAPTER S.26

Disposition of property in void devise
23.Except when a contrary intention appears by the will, property or an interest therein that is comprised or intended to be comprised in a devise or bequest that fails or becomes void by reason of,
(a) the death of the devisee or donee in the lifetime of the testator; or
(b) the devise or bequest being disclaimed or being contrary to law or otherwise incapable of taking effect,
is included in the residuary devise or bequest, if any, contained in the will. R.S.O. 1990, c. S.26, s. 23.

Substitutional gifts
31.Except when a contrary intention appears by the will, where a devise or bequest is made to a child, grandchild, brother or sister of the testator who dies before the testator, either before or after the testator makes his or her will, and leaves a spouse or issue surviving the testator, the devise or bequest does not lapse but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible,
(a) if that person had died immediately after the death of the testator;
(b) if that person had died intestate;
(c) if that person had died without debts; and
(d) if section 45 had not been passed. R.S.O. 1990, c. S.26, s. 31.http://www.canlii.org/en/on/onsc/doc/2006/2006canlii26979/2006canlii26979.html

Dewitt v. Taggart Estate, 2006 CanLII 26979 (ON S.C.)

33

I suppose a better answer would be that due to the testator’s intention not being clear in the will, the lawyers will get the estate.

34

There’s gotta be a way.