IANAL, you’re not my lawyer, I’m not asking for legal advice, only imho thoughts. And I’m particularly interested in Canadian aspects.
Imagine, if you will, an elderly parent has 3 adult children. One of the children is a wastrel with a criminal record who has stolen from the parent over several years. The parent has a lawyer draw up a will explicitly writing the wastrel out. The estate is divided equally among the two other adult children. Upon the parent’s death, the wastrel sues the estate and executor, claiming they are due 1/3 of the estate.
The other children respond with letters from their lawyer indicating they will fight the suit and are not interested in a settlement. The suit has not gone to court, there is no court date, and the wastrel and their attorney have not been heard from for about 2 years.
Is there a legal process other than going to court to put an end to a lawsuit, to remove it from hanging over people’s heads?
Do mean something like mediation? I’m not sure.
I came in to post that my grandfather put such a clause excluding a son and daughter-in-law in his will (Alberta), but it was considered an “ad terrorem” clause and not enforceable. His was a holographic will, and not written up by a lawyer, though, which probably makes a difference: any lawyer worth his / her salt would probably have anticipated that.
No, I was wondering if there was something one could request from the court, or a time limit on pressing a lawsuit.
The parent’s will was drawn up by an attorney.
Writing someone out of a will is not “ad terrorem”. An “ad terrorem” clause is one that attempts to prevent a party from challenging the legality of a will.
A lawsuit typically has a time limit that it can remain active. In the US, different states have different time limits. You’d have to find out what Canada has. But it’s pretty easy to keep the lawsuit active. All the lawyer would need to do is file something related to the case and the clock would reset. Here are some US lawyers discussing this kind of issue:
https://www.avvo.com/legal-answers/how-long-can-a-civil-case-remain-open-before-it-is-3637247.html
If the other children already have lawyers (the ones who wrote the letters), those lawyers should be able to file a Motion to Dismiss. They can also do lots of other things to get this resolved.
In this hypothetical will, is the executor one of the children or someone else? I’m not 100% sure of the details, but I believe the executor is supposed to announce the death and there is a time limit for people to come forward with claims to the estate. This time limit might also factor in. Perhaps if the other child does not progress their claim quickly enough, they might lose the ability to make a claim (just a guess).
I am not a lawyer—I only learned of the phrase as a part of the court battle.
The specific clause read “Note [name] share to be held in trust till after the death of [name’s common-law wife] which he is shacked up with. If [name] dies before [wife] his share is to go to [brother’s name].”
Why this was ruled ad terrorem, or whether it was correct to do so, I cannot say.
Australian (Queensland) lawyer.
In this jurisdiction, unless the claim were challenging the validity of the will itself it would be a Family Provision application. Under the relevant legislation such a claim must be commenced within nine months of the deceased’s death. There is provision for extending time, but where the wastrel had been legally represented, the circumstances would have to be fairly extraordinary to have the time limit extended.
ETA- if the proceedings were commenced the relevant civil procedure rules would apply, which would mean a party would need leave to take a step in the proceedings where no step has been taken for more than 2 years.
Sorry, I keep getting distracted by hearing this in Rod Serling’s voice.
Is it just a storyline plot twist that rather than disinheriting, you leave that person $1 and there’s nothing they can do?
Has the lawsuit been filed with the court or was it just a letter from a lawyer saying they were going to sue? If it was just a letter from a lawyer 2 years ago, I don’t think there is anything to dismiss. I don’t think a letter alone is going to have much legal standing without an actual lawsuit filed with the court.
Thanks for the replies. Yes,I was trying for a Rod Serling effect to enhance the you are not a lawyer claim.
The wastrel made his claim within the time limit and has filed a suit with the court. But no date for court was ever set, and there has been no word from the wastrel and their attorney for two years now, not since the other family members obtained the wastrel’s 500 pages of police records through a court order.
So the question is, are the measures that can be taken to wrap this up? Or do people have to go on with the possibility of the suit rising from the ashes?
I’ve got no experience in family law but I can tell you court dates are screwed up due to covid. I was supposed to be an expert witness in a trail back in March of '20 and the trial was delayed. We still don’t have a new court date. Depending on when the case two years ago was filed it may have just been coming to the top of the pile before COVID kicked it off a cliff.
IANAL, but I would think a motion to dismiss is in order. What possible grounds are there for the lawsuit?
IANAL, but I believe the idea there is to specifically call out a person in the will and leave them a token amount, which prevents a lawsuit on the grounds that the testator forgot or overlooked that person. It’s a statement that “I’m fully aware of that person’s existence, and the fact they likely believe they will inherit something from me, but I disagree.” There are plenty of other grounds they can still sue on - like undue influence by other family members.
I am not your lawyer and I am not offering legal advice.
Canada has a rule (48.14) that allows for the dismissal of civil actions for lack of prosecution. The family members who have this hanging over them should be able to file a motion based on that rule. You can read more about it here.
Not here. In a Family Provision Application, an eligible person can apply to the Supreme or District court for ‘adequate provision’ for the applicant’s ‘needs’ to be made from an estate.
Thanks, everyone. The note from Hamlet was particularly useful. Will spare you the details, but parent swore an affidavit listing 2 pages of abuse suffered at the hands of the wastrel, and that was the grounds for leaving them nothing. Wastrel alleged undue influence by siblings. Suit was filed, there was some wrangling over possible court dates, then silence. Wastrel’s lawyer may have made the mistake of believing their client and once details were made known, may have backed off from what was clearly not going to be an easy win. Thanks for the ideas, opinions, and insights.
When I worked with a lawyer on my will (in USA, Minnesota) he said to explicitly say
"I have intentionally omitted my parents from this Will…
These omissions were not occasioned by accident or mistake. I have intentionally limited gifts as defined by this Will."
He said this was to make it clear that I had not just forgotten to include them, and that the same could be done by leaving them $1 in the will.
Originally, I had “omitted my parents because I presume they will predecease me.” My lawyer made me take out that last phrase, because he said if a parent happened to survive me, that could be used as a loophole allowing them to attempt to challenge the will.
Interesting - did you have a spouse or children when you wrote the will? I guess I’m wondering why the law would think parents would have any claim on an adult child’s estate if the child had a spouse or children. Certainly you don’t have to explicitly disinherit aunts & uncles, cousins, etc.
I have neither spouse or children (then or now), and my siblings were already provided for in the will.
So that would leave my parents as the closest blood relatives to me, if I had died then. I suppose that’s what the lawyer was thinking of.