# Thinking of making a will? If you're in Canada, don't bother! **URL:** \ **Category:** The BBQ Pit\ **Created:** [December 1, 2010, 10:45am UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527 "2010-12-01T10:45:17Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [December 1, 2010, 5:46pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/41 "2010-12-01T17:46:44Z")
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. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [December 1, 2010, 5:49pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/42 "2010-12-01T17:49:55Z")
Of course, the major advantage to drafting a will in Canada remains the ability to bequeath boots to the head. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [December 1, 2010, 6:44pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/43 "2010-12-01T18:44:36Z")
That _is_ outrageous. They’re letting women own _property_ now? ---
**Author:** ![Mighty\_Girl](https://avatars.discourse-cdn.com/v4/letter/m/7bcc69/32.png) [@Mighty\_Girl](https://boards.straightdope.com/u/Mighty_Girl)\ **Post date:** [December 1, 2010, 7:11pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/44 "2010-12-01T19:11:35Z")
> [@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. 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. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 1, 2010, 7:21pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/45 "2010-12-01T19:21:11Z")
> [@villa](#): > > 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) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [December 1, 2010, 7:29pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/46 "2010-12-01T19:29:15Z")
> [@Hello\_Again](#): > > 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. ---
**Author:** ![KarlGrenze](https://avatars.discourse-cdn.com/v4/letter/k/dbc845/32.png) [@KarlGrenze](https://boards.straightdope.com/u/KarlGrenze)\ **Post date:** [December 1, 2010, 7:39pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/47 "2010-12-01T19:39:34Z")
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. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [December 1, 2010, 7:52pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/48 "2010-12-01T19:52:37Z")
> [@Hamlet](#): > > [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. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 1, 2010, 8:00pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/49 "2010-12-01T20:00:17Z")
> [@villa](#): > > 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"_ ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [December 1, 2010, 8:11pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/50 "2010-12-01T20:11:42Z")
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. ---
**Author:** ![Vihaga](https://avatars.discourse-cdn.com/v4/letter/v/b4bc9f/32.png) [@Vihaga](https://boards.straightdope.com/u/Vihaga)\ **Post date:** [December 1, 2010, 8:44pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/51 "2010-12-01T20:44:04Z")
> [@KarlGrenze](#): > > 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. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [December 1, 2010, 9:10pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/52 "2010-12-01T21:10:28Z")
> [@KarlGrenze](#): > > …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? 😕 ---
**Author:** ![CPomeroy](https://avatars.discourse-cdn.com/v4/letter/c/ed8c4c/32.png) [@CPomeroy](https://boards.straightdope.com/u/CPomeroy)\ **Post date:** [December 1, 2010, 9:16pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/53 "2010-12-01T21:16:29Z")
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. ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [December 1, 2010, 9:20pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/54 "2010-12-01T21:20:03Z")
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! ---
**Author:** ![KarlGrenze](https://avatars.discourse-cdn.com/v4/letter/k/dbc845/32.png) [@KarlGrenze](https://boards.straightdope.com/u/KarlGrenze)\ **Post date:** [December 1, 2010, 9:23pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/55 "2010-12-01T21:23:43Z")
> [@Vihaga](#): > > 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. ---
**Author:** ![BwanaBob](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bwanabob/32/2985_2.png) [@BwanaBob](https://boards.straightdope.com/u/BwanaBob)\ **Post date:** [December 1, 2010, 9:29pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/56 "2010-12-01T21:29:38Z")
> [@villa](#): > > 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. ---
**Author:** ![Spoons](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spoons/32/3141_2.png) [@Spoons](https://boards.straightdope.com/u/Spoons)\ **Post date:** [December 1, 2010, 9:37pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/57 "2010-12-01T21:37:17Z")
> [@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. 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. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [December 1, 2010, 9:52pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/58 "2010-12-01T21:52:26Z")
> [@BwanaBob](#): > > 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. ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [December 1, 2010, 10:18pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/59 "2010-12-01T22:18:43Z")
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. ---
**Author:** ![Mighty\_Girl](https://avatars.discourse-cdn.com/v4/letter/m/7bcc69/32.png) [@Mighty\_Girl](https://boards.straightdope.com/u/Mighty_Girl)\ **Post date:** [December 1, 2010, 10:18pm UTC](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527/60 "2010-12-01T22:18:54Z")
> [@Mighty\_Girl](#): > > Same here. And by “here”, I mean the Dominican Rep. :smack: [Previous page](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527.md?page=2) [Next page](https://boards.straightdope.com/t/thinking-of-making-a-will-if-youre-in-canada-dont-bother/562527.md?page=4)