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    Estate litigation after exclusion of an heir

    Following a death, it sometimes occurs that a person who anticipated an inheritance receives nothing, whether by design, oversight or an unforeseen technicality. Whatever the reason, it may be necessary to begin a court battle to right the perceived wrong.

    One Ontario man recently faced such a situation and went to court to challenge the will of his late paternal grandmother. According to the woman’s will, the entirety of her estate was left to her husband, and if he was not alive, then the estate would pass to her two sons, with each son receiving an equal share. Her husband passed away before her, as did one of her two sons.

    Her late son had two sons of his own, to whom his share of the estate would presumably pass. However, the eldest son was born out of wedlock. The decedent wrote her will in 1977, and at that time, a child born outside of a marriage had no legal standing in estate law unless he or she was specifically mentioned. Although amended legislation in 1978 changed the interpretation of “children” to include all biological descendants, this was not applied retroactively.

    The omitted heir took the case to court, arguing that the social stigma of a birth outside a marriage no longer exists as it did when his grandmother wrote her will. He also presented compelling evidence of a relationship between himself and his grandparents in the form of an RESP they had set up for him. Although the judge agreed that a child born out of wedlock has the same entitlement as a legitimate child, the judge felt compelled to uphold the policy of the time of the will’s writing.

    This case shows why it is important to periodically review and keep a will up to date. Unfortunately, the young man’s court battle ended unsuccessfully, although he could consider appealing the judge’s decision. Estate law in Ontario can be a complicated matter, and it is always prudent to speak with a lawyer to help ascertain one’s rights when things do not go as expected.

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    Posted By: Merovitz Potechin

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