I wasn’t named in the will, what can I do?
We offer and advertise Will and power of attorney (POA) legal services. Because of our advertising, we often get questions about other people’s Wills or about executors who are handling the administration of the estate.
One question that sometimes comes up is what happens when a person who believes they should be a beneficiary is not named in the Will. In most cases, the person calling will be a child who was left out of a parent’s Will.
Unfortunately for the child, a parent is not required to include their children in their Will. A child does not have a right to a parent’s property or estate. While this may appear harsh, the law does not want to dictate to someone how that person’s assets should be distributed. This is based on the fundamental value at common law, that neither the state nor the law should tell people how to manage their personal affairs.
A parent may have good reasons to exclude one or several children from their Will. In the end, the reason for excluding children, is not relevant. The Will is legal as long as the parent is legally capable of making the decision and the parent is not coerced while making the decision.
However, as most everything else under the law, some circumstances exist that could undermine the Will’s validity. First, the person making the Will must be competent to do so. This means that the Will maker (the testator) must understand the nature of her assets. They must know what they own and the approximate value of those assets. Secondly, the testator must understand the effect of the Will. Finally, the testator must understand the relationship between themselves and the beneficiaries named under the Will.
While this may seem straight forward to most, it is not for people who struggle with legal capacity.
The best example I can give is when someone with Alzheimer’s disease attempts to provide us with instructions to prepare a Will. From time to time, a concerned child will bring their parent to our office in the hope that we will prepare a Will. If the person is too far gone, they won’t be able to tell us what they own. He/she may even have trouble providing the names of their children. If we determine, in an interview, that a person lacks capacity to make a Will, we cannot draft one.
If someone creates a Will or signs a Will, and that person lacks the legal capacity to understand what she created and signed, a court will likely find the document invalid. So, if you believe that your parent was not legally capable of understanding the Will when they signed, you may have grounds to have the Will declared invalid.
At law, we refer to this as “undue influence”. A person can also challenge a Will if the testator was improperly influenced by someone else. The person challenging the Will must satisfy the court that sufficient proof exists that someone coerced the testator. The proof required is more than simple influence. This happens all the time.
Parents often feel an obligation to help their children. In a Will, parents may prefer one child over another because of their personal circumstances. This does not necessarily amount to coercion. But, if a parent relies entirely on one child, and that child uses that dependence to influence the parent, a court may conclude that the decision to leave everything to that child resulted from a fear of being abandoned. If that’s the case, a court may find the Will invalid.
Dependents relief Act of Manitoba
Section 2 of the act states the following:
2(1) If it appears to the court that a dependent is in financial need, the court, on application by or on behalf of the dependent, may order that reasonable provision be made out of the estate of the deceased for the maintenance and support of the dependent.
So if a parent does not include a “dependent child” in their Will, then that child, or someone on his behalf, can apply to court for a ruling forcing the estate to provide a reasonable sum. If the applicant satisfies the court that the child is indeed a “dependent child” it will not declare the Will invalid. However, the court will make provisions for the dependent child out of the estate funds.
A person can also challenge a Will on the basis of fraud, although fraud is more difficult to prove than coercion. Finally a person can also challenge a will on the basis that the testator did not know what they were signing or the contents of the document. However this will prove difficult if the Will is properly signed and witnessed.
So the short answer is that a child left out of a parent’s Will cannot challenge the Will on that basis. A Will can only be found invalid in the cases discussed above. If you suspect that one of these scenarios exist, you should meet with a lawyer to discuss. Be warned though, that you will be required to initiate a court action if you want to pursue any of these. As discussed in a previous post, court cases can be very stressful and expensive.
Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.