You Can Fight A Will And Win

Have you been left out of a spouse’s or parent’s will? Do you feel you should have inherited more? Our court has a number of tools it can use to vary (change) a will if appropriate in a particular situation. Here’s a recent illustration.

Eve (names changed), then unemployed, married Mark, a realtor, in 2002, and moved into his house. Eve had an adult daughter, Kim, from a previous marriage. Kim and Mark did not take to each other well either initially or later, which led to friction between Mark and Kim’s mom, Eve, during their 10-year plus marriage.

In 2005, Eve was diagnosed with cancer. Despite treatment over several years, she found out in early 2013 that she was terminally ill. So a couple of months before she died (at age 53), she made a will. In her will, she left all of her estate to her daughter Kim and nothing to her husband Mark (also 53 at the time). Kim also got some $400,000 outside of the will, while Mark only got some $32,000. Mark went to court over the will.

Mark’s challenge focussed on a valuable investment property, a side-by-side duplex, which he had bought in 2005 with his own money (and with support from his mom so he could get mortgage financing). He also looked after, repaired and maintained this property afterwards, mostly with his own money (beyond the rental income).

He bought this property as a retirement fund for himself and Eve, since neither of them had any private pensions to fall back on. He put title to the property into his own and Eve’s names as “joint tenants.” That way, when one of them died, the survivor would automatically become the owner of the whole property (outside of any will).

Secretly and without Mark’s knowledge, shortly after making her will, Eve turned her half interest in the duplex from a joint tenancy (with right of survivorship) into a “tenancy in common.” Changing the title this way meant that once she died, her half interest in the property would go into her estate, and her will would dictate who got it. Here, it meant it would no longer go to Mark (outside the will), but rather would go to her daughter Kim.

The court observed that despite Mark’s and Eve’s differences and Mark’s own serious heart problems, Mark had faithfully looked after and taken care of Eve during her long drawn out illness.

It concluded Mark hadn’t intended to give half of the duplex outright to Eve when he put her on title as a joint tenant. That would only happen if he had died before her. So she still held that half for his benefit (as did Kim afterwards). In any event, Eve’s obligation to Mark outweighed any obligation to her independent adult daughter, Kim. So the court changed the will and Mark got the disputed half (Eve’s half) of the duplex.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

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