Daughter Contests Being Left Out Of Will

December 3, 2021

Mark Feigenbaum

Having a proper will in place is one of the most important steps anyone can take in planning for what will happen to their estate in the event of their death. A will allows a person to decide what will happen to all their property and assets. In the absence of a will, property and assets of the estate are distributed according to statute, which may be contrary to the deceased’s wishes. However, even when someone makes a will, there can be disputes amongst their beneficiaries or would-be beneficiaries about how the estate was distributed. This type of dispute was recently illustrated in a decision from the Ontario Superior Court of Justice in which one of the deceased’s three children says she was cut out of her mother’s will for no good reason. She pursued litigation against the estate, challenging the validity of the will. Continue reading to see what the court determined.

Mother leaves estate to two of her three children

The matter came before the court after the deceased’s daughter (“the applicant”) sought disclosure related to the estate of her mother (“the deceased”). She was doing so because after her mother died in August 2020, the applicant learned the deceased had prepared a will in 2015 which was significantly different from one she had prepared in 2007. The newest will leave her estate to two of the deceased’s three children, cutting the applicant out entirely. 

The applicant stated that her mother had always treated all three of her children equally and that the 2007 will had left them equal shares of the estate, which was valued at $457,000. She said she was suspicious of the new will and sought her mother’s medical records, financial records, and the notes and files of the lawyer who prepared the 2015 will. 

The executor of the estate, another one of the deceased’s children, said there was no basis for the applicant’s disclosure request and that the applicant was very aware of why their mother had disinherited her. 

Did the applicant know why her mother had left her out of her will?

The court began its analysis by highlighting that to challenge a will, an applicant must meet a minimum evidentiary threshold. This barrier to entry is in place to prevent the courts and estate executors from being hit with countless challenges and trips to court, adding that claims with no merit could end up depleting all the assets from a small estate. A 2017 decision from the same court stated that at the preliminary stage, the issue is not whether the applicant has proven their case, but whether they should be given the tools to pursue it, in this case obtaining records from the estate. In order to determine if the applicant has met this threshold, the court must analyze the evidence presented by the applicant. 

In this case, the applicant said she was “inexplicably” disinherited from the estate. However, the court found that affidavits provided by the executor and the lawyer who represented the deceased paint a different picture. 

The applicant had previously served as her mother’s attorney for property and personal care. She held this role from 2004 to 2014. The executor said the deceased was physically prevented from managing her financial and personal matters, but that she had good mental health at the time. The applicant was removed from her position after the deceased learned she had moved funds from a bank account to the applicant’s own account in Alberta. The applicant had also been granted rights of survivorship to some of the deceased’s investment accounts during this time. The executor told the court her mother had not intended for the applicant to become the beneficiary of her accounts. The court was told the deceased was upset with what had transpired and removed the applicant from her role. However, the applicant said she stepped down for her own health reasons.

The deceased’s lawyer said he helped the deceased pursue legal action in order to regain control of her finances, and that she was of sound mind when she asked him to draw up a new will, cutting the applicant out of her inheritance. 

The applicant’s position was that her mother lacked the capacity to make a will in 2015, telling the court she had once left a hospital she was staying in without a coat or shoes. She also said her mother suffered from early-onset Alzheimer’s and severe depression. However, she had no evidence to support either of these claims. While a doctor had diagnosed her with dementia in April 2015, he also said it wasn’t so bad as to prevent her from understanding forms she would fill out or the consequences of such forms, which can be extended to the drafting of a will. 

Court finds applicant does not meet evidentiary threshold 

The court was not satisfied that the applicant had met the minimal evidentiary threshold required for the disclosure she was seeking. Instead, the court found the executor’s and lawyer’s evidence to have painted a rational and “entirely understandable” reason as to why the applicant was cut out of her mother’s will. The applicant’s actions as the attorney for property and personal care had caused the deceased to have to pursue legal actions to regain control of her finances after the applicant failed to cooperate by providing the details of her accounts. It made sense that the deceased might want to disinherit the applicant. As such, the application was dismissed. 

Contact Feigenbaum Law for effective estate planning and guidance

Mark Feigenbaum routinely helps clients avoid some of the biggest legal and financial risks associated with estate planning. Call us at 877-275-4792 or reach out to us online in order to see how we can help manage, transfer, and preserve your wealth with an eye on avoiding litigation and unnecessary taxes. We have extensive knowledge of tax and estate law in both the United States and Canada.  


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