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.
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).
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.
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)
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.
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 (which nicely summarizes everything):
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.
*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"
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.
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”?
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?
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.
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!
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.
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.
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:
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.
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.
