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How to ensure minimal litigation among children upon death
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It may be impossible to prevent a dissatisfied beneficiary from suing other beneficiaries
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By Julie Cazzin with Ed Olkovich
Q: I’d like to put a clause in my will that states something along the lines of, “If any of the beneficiaries decide to dispute the contents of the decedent’s estate, their share becomes $1 and nothing else.” Is this clause enforceable? I have four children, all of whom are beneficiaries, and I know that two of them will not be happy with the way I have assigned assets in my will. Is there anything else I can do to ensure that the wishes in my will are carried out quickly, expediently and with the least amount of litigation? — Charles
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FP Answers: Charles, your question sounds simple. You ask, “How can I ensure my final will wishes do not cause lawsuits, unwanted expenses or delays?” Can you penalize anyone who objects to what is in your will? Are you hoping a “no-contest” clause makes people accept how you divided your property or estate? That depends on multiple factors. These no-contest clauses can be either enforced or ignored by courts as contrary to public policy.
No-contest clauses in your will usually aim to penalize any beneficiary who challenges your wishes. However, the wording of any no-contest clause must be carefully drafted. You need local, qualified will lawyers to provide legal opinions on the clause. Some no-contest clauses are, on public policy grounds, not enforced by courts. This depends on the law where you live and die.
No-contest clauses can create legal disputes in interpreting what your clause means or tries to prohibit. No-contest clauses try to reduce a person’s gift, but your penalty terms must be clearly spelled out. If anyone contests this wording or your decision, you will need to have prepared gifts to substitute beneficiaries. Otherwise, your no-contest clause may be treated as an idle threat that the courts ignore.
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What if the wording of your clause is ambiguous? Your clause cannot prohibit courts from interpreting your language or questionable wording. This can create more expenses and delay the estate distribution by freezing your estate.
Wills are legal documents. Each jurisdiction allows courts to supervise wills. Any will can be attacked based on legal grounds. These include your lack of capacity, if you were coerced or if there was fraud in making your will. You cannot remove the courts’ authority to ensure your last will is legally valid.
Courts review and confirm that wills satisfy legal requirements. No-contest clauses cannot prohibit courts from investigating suspicious wills. Courts must protect vulnerable persons. You are free to make a will as you see fit, provided you have a sound mind and honour all your legal obligations. This test is a legal one, not a medical test.
There are public policy reasons for courts to supervise such clauses. You cannot leave your business to, say, Kate in your will “provided she does not marry Vito.” Such marriage restrictions are not enforced by courts for policy reasons. You also cannot prevent courts from intervening if you deny financial assistance to anyone who is entitled to your support or has legal claims to your estate.
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An attack on beneficiaries may not be a challenge to the no-contest clause. It may be impossible to prevent a dissatisfied beneficiary from suing other beneficiaries.
Are you trying to encourage certain conduct? Be careful. What you may think is a carrot can be viewed as a stick. If you are treating two children differently in your will, your will lawyer may offer you alternatives or suggest mediation. You must, however, comply with your legal obligations and promises that can be enforced by courts.
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Your will should keep records to confirm your decision if disputes arise. Lawyers’ notes can support your intentions. This may also comfort your children who struggle when wondering why this happened. Your motivation may not matter if it is your own. This is another reason to have a qualified will lawyer prepare your will. Lawyers can then support and defend your last wishes.
Edward Olkovich is an Ontario lawyer at MrWills.com. He is also certified by the Law Society of Ontario as a specialist in Estates and Trusts Law.
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