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Where there's a Will... not always an easy way

March 22nd, 2005, 05:08 PM
I just wondered if I could ask your opinion on the ethical aspect of an issue that one of my sisters is currently dealing with.

Her husband is currently making up a will. He is 21 years older than she, and though in fantastic health, is now 82.
They have been married (common-law) for 22 years now.
They have clear title to the home they have shared for years now. I dont believe there are too many other major assets -this the main one.

She just learned that her husband is planning to leave 60% of this to her -and 40% to his two adult daughters from his first marriage. (both are the same age as she is)
She believes that together they have manipulated him to agree to this, in order to keep good relations - and she's very angry about this unexpected development.

But she is not wanting to deny him his ultimate last wishes either.After all, it IS his half of all assets that he wishes to disperse.

The heart of the issue is that she isnt "their" mother. The step-daughters maintain that down the road... all will go to HER two grown kids..and they will be left out in the cold.
That is a valid concern - though these women will both inherit from their own mother, who is apparently quite wealthy.

I'm not familiar with what is the "norm" when adult children from previous marriages are a factor - but its certainly a common scenario.

What is legal is in the books, a court can decide if it comes to that.

But she isnt sure if she should be fighting this now?
She wants to stand up for her rights, but not infringe on his in doing so.
That is what she is seeking my advice on. I'm just not sure. :confused:
But I naturally take "her' side, so impartial thoughts on this would be greatly appeciated. :ca:

March 22nd, 2005, 05:55 PM
From what I understand, it is best for the biological parent to acknowledge biological kids and give them something in the will, because basically if you don't and they fight it, the courts don't look to kindly on "blood"(so to speak) kids being left out and someone else getting everything. (the will get their share if they fight )

But what the C/L decides to do with her share after she dies is entirely up to her and she does not have to leave anything at all to "his" kids.

March 22nd, 2005, 06:05 PM
I think this is more an issue that your sister and husband shoudl discuss. It depends on what province she lives in (whether there is community property law (I think only Quebec has community property) or how many years are taken into account when two people cohabitate but are not legally married.). In NB, I if she has lived with him for three years and something would happen to him and there was no will, she would be considered his legal wife and thus entitled to his assets- depending on court fees and so forth. I would not want to guess about other provinces - I used to know this stuff but have not needed too since my own divorce, lol

I can understand why she'd be concerned if suddently, she only was entitled to 60% of the home she lives in. Hopefully, they have savings and so forth! It is always preferable to have a will but if he does draft one leaving her 60%, that would certainly create complications though she still would have the controlling share. She could point out to him the problems such a will would create. (I am assuming they are developing their wills together - as most spouses do and I hope she has other assets besides the family home or else she is in a tenuous situation).

March 22nd, 2005, 06:13 PM
I am one of 6 have 3 stepkids in my family... My mom and step dad have in their wills that when one passes everything is the others until they pass...then 9 kids get what they had together...including their home. Common law is different though..I would look into it more...A friend passed away and his kids got it all... People passing away brings out the worse in many people... greedy.

March 22nd, 2005, 06:30 PM
I agree with GoldenBlaze. .. it they are not legally married, there might be some complications.
I know a couple ho 'divorced' after living twogether for 9 years. They were never married, but considered common-law because of the length of union/same residence. Since they were not considered married, they did not have to split thier assests. Whatever was in thier own name was thiers. IE:if the car and truck were in his name, even if she used and upkept them, they were his.
So I would suggest she speaks to a lawyer of her own and find out what her rights are, under common law.

As to the seperation of his assests, he should make sure that his daughters are cared for, along with his wife. As it is, if she is receiving 60%, and he has two daughters, they are only getting 20% each, 1/3 of what she is getting. The fact that they have another parent that they might receive something from has no relevance in regards to his will, from my perspective.

March 22nd, 2005, 06:37 PM
If they are common-law, unless there is a signed notarized paper stating where the house goes, it goes to his IMMEDIATE Family (in Quebec).
Been there done that!

March 22nd, 2005, 08:07 PM
YES!! I was going to say the same!!!(Although have not "been there" ) Be very cautious as I believe you mentioned they have no children together. I was not aware that you need a seperate paper just for the house, but I know that if the paperwork is not done, in Quebec, they divide the estate into thirds, 2/3 rds going to the "natural heirs"(his immediate family, kids)

I feel for you and your sister, as the laws in Quebec are not on her side.

Good luck to her, and glad to hear that the will is done, at least she won't stand to lose everything. :(

March 22nd, 2005, 09:26 PM
All I can say about this issue is that you can never control what people put in their will. When my dad recently remarried, we knew that his will would be redrawn to include the new step-kids (although they are older than us all). I guess I was brought up to be very independent, with the notion that life is hard and unfair, and anything you get from a will is a gift and should not be expected, even from your spouse. But a lot of people call me a pessimist...

I think what is needed here is communication. If she is distraught and worried about the will, why not talk about it? Could there be other assets that she doesn't know about? She has to be open and honest about this before she develops resentment for her man and the step-kids (although I think that has already happened...)

March 22nd, 2005, 09:36 PM
I agree re: the children. They ARE his children. I do think she needs to talk to him and protect her "investment" in the marriage but I would hop she has her own financial independence as well. I have a friend whose parents are leavig their money to one daughter because the other two have good professions and married well. Give me a break!!

I have to admit, I would be upset if my one of my parents did not leave me any of their assets - even if my sibs and I all have good jobs and would manage sans an inheritance, it is the principle of the thing for me - not the money.

I guess it depends on how close the daughters are to him as well. If they just show up in order to be in the will - tho seems to me if the only asset is a house there is not much to fight over (unless it is some mansion, lol) - that is another matter! She does need to make sure she is an equal partner in the relationship and that means being open with him about her feelings. Surely both of them have RRSP's and investments as well. And I hope she has hers in her name!! Because common law can be very legally dicey, especially when the natural family - who probably have more rights if they are not legally wed.

The best advice is for her to enlist her own lawyer!

March 22nd, 2005, 09:45 PM
I don't really know what to say about this. I believe his last wishes should be seen, but at that age it's hard for him to not be so impressionable.
My aunt is sort of going through the same thing, except the good health part and my heart is breaking for them both.
My aunt has a BF she's been living with for 15 or so years now and he's about 10 years older than her with grown kids too, he's about 70 now. All of the problems started when he was ran into by a kid on a bike and he fell and broke his hip. He only had one arm to begin with, that was lost in his teens. He had major complications and wound up losing BOTH of his legs due to infection. Now his daughter is screaming poverty and won't let him change his will. My aunt has been taking care of him for the last 15 years and even more since this happened 2 years ago. She doesn't think my aunt deserves anything and I don't think she's going to get anything. His daughter actually has a lawyer already, waiting for him to die so she can have everything, it's very sick.
Thank God he's not ready to go yet, my aunt has helped him walk! With no legs and only one arm, he amazes me.

I'm sorry if this is a hijack, but they are kinda related.
I think everyone should back off and let him make up his own mind and the person most deserving and loyal will win in the end. :love:

March 22nd, 2005, 10:01 PM
My father left me and my mom when I was 7yrs old,they divorced.,When he passed away(in Sweden)about 15yrs ago,his then family had to search for me(in Canada) and give me as much money as my half-brother recieved.
I was actually not in the will,but Swedish law says,the money goes equally to all biological children.

March 22nd, 2005, 10:28 PM
Is her name on the house also or is it only in his name? If her name is on there then she will get the house....i think. But if her name is not on it and they are not considered married i am not sure what would happen. Hope it all works out.

March 23rd, 2005, 07:24 AM
They way we have things set-up is If I die first everything goes to my husband, if he goes everything goes to me. When we're both gone everything is divided equally between the children, step children included.

If everything hadn't been given over to the surviving spouse then there was a good possibility that the surviving spouse would be out of a home because the claim that the step-children would have had on that asset.

Something to think about when dividing an estate between the living spouse and step-children - especially when the house is the asset being divided.

March 23rd, 2005, 02:29 PM
Thanks kindly for your input and experiences. Some very good advice and suggestions.
A personal famly issue.. I wanted to first present this as a hypothetical question, but too many details were omitted. :sad:
As my husband and I have both have no former marriages, no stepchildren, its an issue I've had no reason to investigate.
I'm very surprised. I actually thought that common-law partners had exactly the same legal rights as those legally married right acrossthe board. Apparently not so (we are in B.C.) in Quebec especially.. a spouse can be left in a very precarious postition. :sad:

Well, lots of questions arise.. and I wil be seeing my sister over the Easter weekend..get a better handle on what is going on.
Why didnt they go together for a joint will.. which would be the likely thing to do?
Is the deed to their home in his name only? (I get the idea it is... but havent confirmed this)
There seems to be some issues that I am not aware of.. a real communication lapse- for this matter not to be resolved before it came to this.

Her own lawyer is defintely need for advice at this point, and maybe a family meeting for all parties would be a good idea. (if they can keep the hostilties in check) :mad:
I've no idea of their other assets..or even if there are any. I suspect though that the home is hands down the biggest one. They wanted to travel a lot in recent past years,and have done so, fulfilling their wishes to see all they could while they could. Rather than hang on to their money- they wanted to enjoy it this way. Their money- their choice.
I've envied their exotic travel, but am much more frugal. I know you cant take it with you.. but I am just cautious by nature.

As they were both middle-aged when they met..their kids were grown, and so this was not a "family" home.
They bought and furnished it together, paid for it together, and all she wants is to be able to stay in it without feeling she could be ousted at the behest of others.
Ultimately, it can and should be divided up amongst the four children. That is fair.
While she is still alive, a sharing of the interest in the home is not an "inheritance" but a merger.. to me.

Thanks again for your prospective on this difficult and complex issue. :thumbs up :ca:

March 23rd, 2005, 04:01 PM
A codicil may be a way to go. Perhaps he could work into the will that, upon her death, ALL proceeds of the combined estate is to be divided amongst ALL the children, and not just hers. In accordance to the codicil, her will MUST contain a pre-determined amount (to be decided upon now) to be distributed to his biological children. Should she fail to accept the terms, his biological children will have legal recourse to persue a lawsuit against any of her heirs.

It sounds like your sister is more than willing to abide by her husbands wishes, and that should satisfy the most greedy of children. (I've seen it work in the past)

Might be something to put to a lawyer and see what they say about it. A copy of the will (his and hers) would remain at the lawyer's office to be read upon her passing. Should she remarry, the predetermined ammount would still pass to his biological children. You never know, it may just pacify them (the greedy little buggers).

March 23rd, 2005, 06:30 PM
Common-Law rights are not the same as the being Married rights.

My Aunt had died.My Uncle was then in a Common-Law relationship.It was stipulated in his will that his younger daughter gets the house when he dies.He built his younger daughter a home when she got married.He had his own company and built homes.It was stipulated that when he died,his common-law "wife" had a year to live in the house,then she had to leave and the daughter would move in,or do what she pleased with the house.He did end up leaving the common-law $25.000.And she took what belonged to her and her only.He did pass away,and she did move out after a year.

March 23rd, 2005, 07:58 PM
His daughters probably won't agree to the codicil if they are the same age as your sister. They may never get anything if they die before she does. Assuming all are agreeable with the 60-40, the home would probably have to be sold in order to be split up. She'd never be able to purchase a comparable home with 60%. If they purchased the home together and paid for it together, she should insist on her name on the deed as well. Otherwise, she could be left out entirely in the cold.

March 24th, 2005, 01:58 PM
Under family law (at least in Ontario), whether the house is in both names or just one, it becomes the "matriomonial" home, and each spouse has equal rights to it. If the will stipulates something different, the will will be followed, unless it is contested, in which case the law over-rules the will. I could be wrong, but I'm pretty sure it is the same for common-law relationships as well. Definitely consult with a legal expert.

March 24th, 2005, 03:00 PM
If both names are on the deed, he can stipulate what is done with his half, not hers. I don't know though if common-law status would change anything. What if 2 roommates bought a home together. Wouldn't each party own 50%? I wouldn't think they could bequeath the roommates share of the home if they were to die.

March 28th, 2005, 10:25 AM
I checked with my wife who has her PFP designation. Apparently, common-law does not have the same rights.

March 28th, 2005, 01:19 PM
Yesterday my sister told me that after $900 in lawyers bills .. they are back to square one. :sad:

They need to resolve this - and soon.

March 28th, 2005, 01:29 PM
I checked with my wife who has her PFP designation. Apparently, common-law does not have the same rights.

I agree, I know this for a fact... I'm going through somethings now that because we are common law some matters are different. Good Luck to her.