Real Considerations When Contemplating Writing A Beneficiary Out Of A Will

Will Considerations & Beneficiaries

Testators have the ability through the instrument of a Will to dispose of all of the assets held by their estate at the time of their death in a free and discretionary manner as they may choose.

This notion of testamentary freedom although regularly upheld in common law courts in the West, may see real and costly court challenges when certain considerations are often overlooked by the testator at the time the Will is being drafted.

A common court challenge arises when certain beneficiaries are expressly left out of a Will. Some of the reasons why a testator may elect to leaving a beneficiary out of the Will include the following:

• having an estranged or fractured relationship with a son or daughter;
• a beneficiary has already have received a significant share of the estate during the life of the testator, for example where parents provided a down payment for their child when the child was purchasing his or her first home;
• gifting a cottage property to the beneficiary during the testator’s lifetime;
• Funding the purchase of an investment property in the beneficiary’s name;
• having already designated the beneficiary on a life insurance policy;
• the need to offset a child’s debts owed to the parents at the time of their death proportionate to his or her  share of the estate;
• having financially supported one child more so than another child in the family;
• testator is against funding a beneficiary’s possible involvement in criminal activities; and last but not least,
• not wanting to support a gambling or drug addiction of a loved one.

Although a court challenge contesting the validity of a Will may be brought at almost any time, testators should be aware of the following points when thinking about whether or not to write a beneficiary out of their Will:

1. Leaving a beneficiary a minimal gift in the Will – This could be done in the event the testator isn’t on the best of terms with a beneficiary, and wants to spare the estate the potential cost of litigation if they explicitly disinherited a beneficiary. Along with this minimal gift, a properly signed and witnessed letter/memo as to why such a gift was left would aid estate trustees in the event there was a court challenge, as they can use the contents of the letter to show the testator’s real and true intentions. The witnesses may be called upon to testify to the capacity of the testator at the time of execution of that specific letter/memo which would accompany the Will.
2. Explaining within the Will why a beneficiary is being left out – If the testator is set on not leaving a minimal amount to the beneficiary, a detailed explanation with facts surrounding the disinheritance of that beneficiary is important to withstand a court challenge. This would typically be in the form a clause inserted in the body of the Will elaborating on their reasons, whatever they may be.
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3. Dependent’s Claim against the Estate – Section 58(1) of the Succession Law Reform Act, R.S.O 1990 (SLRA), states that where a dependent has not been provided adequate provisions by a deceased whether they died testate or intestate, the dependent may have a legitimate claim against the estate. Section 57(1) of the SLRA describes a dependent as a child, spouse, parent or sibling of the deceased. An adult child is usually prevented from relying on this definition unless they can produce convincing evidence to a judge outlining their dependence on the deceased. If a dependent has certain physical or mental disabilities that prevent them from providing for themselves, it is likely that a Court will allow the dependent’s claim to proceed if adequate provisions aren’t in place, barring any evidence introduced to the contrary by the estate trustees.

​Adequate estate planning during the lifetime of the donor and clear and express intentions in testamentary documents are some of the mechanisms which may protect estate trustees from unnecessary challenges to the validity of the testator’s Will.

Feel free to contact the author at ssidhu@kmblaw.com or at 905-276-0423 to discuss the issues highlighted in this article or any of your estate planning needs.