Jane Smith was adopted in 1941 when she was fourteen day sold. Her adoptive mother and adoptive father raised her together until her father died when she was eleven.

Unfortunately for Jane, her mother remarried in 1952 to a new husband, Mr. Miller.

Time passed and Jane grew up, moved out, and had two children of her own. Those children, in turn, grew up and moved out. Jane was an only child and was the sole heir under the terms of her mother’s will.

In her mother’s later years, she was diagnosed with dementia. Mr. Miller took Jane’s mother to a lawyer and had a new will prepared. This occurred one year after the diagnosis of dementia. The new will left everything to other family members, and nothing to Jane.

Her mother died on January 4, 2000 at the age of eighty-two, eleven months after she signed the new will. Jane was disinherited.

Jane was not going to take that sitting down. She went to a lawyer.

When a child has been disinherited, they have several avenues of attack in trying to restore their inheritance.

First, the child can try to rely on dependents relief legislation. In some provinces a disinherited child always has the right to set aside the will and ask for a share, even if that child is adult and independent. That is true in British Columbia and Newfoundland, for example. It is not true in Alberta, Saskatchewan, Manitoba, and Ontario. Jane was not able to take advantage of those laws. Infant children always have the ability to use dependents relief legislation to secure a share of the estate if they have been cut out. The same is generally true of disabled or financially dependent children. Jane was neither.

Second, a child who has been disinherited can try to attack the will and overturn it on the grounds that the will-maker has become so forgetful that they no longer know their assets. A will-maker needs to know what they own, and who naturally expects to receive it, before they can be said to have the necessary mental capacity for a valid will.

Third, a disinherited child can attempt to overturn the will if the parent was forced to sign the will against the parent’s wishes. If the parent signs a will that is not voluntary, then the will can be set aside. In Jane’s case, the judge decided that Mr. Miller, the step-father, had forced Jane’s mother to sign the will against her wishes.

Fourth, the will can also be set aside if the parent entertains obviously false beliefs about the child. In Jane’s case, her mother had become convinced that Jane did not visit her anymore, and had borrowed large sums of money that were never repaid. Neither of those beliefs were true. Jane lived nearby and visited often. She had borrowed money, but it was chickenfeed. The judge hearing the case decided that Jane’s mother had effectively become deluded about her daughter. Further, that it was the false beliefs that caused the mother to disinherit her only child.

Jane’s step-father, Mr. Miller, was the villain in all of this. He convinced Jane’s mother that Jane was a bad daughter. Jane’s mother was vulnerable. She was extremely prone to suggestion. Mr. Miller poured the oil of sneaky persuasion in her ears and eyes until she could no longer hear or see the truth. Even then, her mother wanted to leave Jane the estate, but her husband forced her against her wishes to sign a will disinheriting Jane. The judge set aside the will. Jane inherited everything her mother owned.

Jane’s story is a true one. The facts here were taken from the published decision of the court that heard the case. Names have been changed to save the family embarrassment.

This will not work for everyone. Your parent can disinherit you. If you are estranged, and there has been bad blood, each of you will often carry an exaggerated idea in your heart about the slights you have suffered. When families fall out, they frequently become entrenched in unreasonably negative views. That will not, by itself, invalidate a will disinheriting you. More is required. The parent has to be outright wrong about clear facts. In Jane’s case, her mother told everyone that Jane was absolutely was not visiting. That was crazy. Everyone knew it was false. Also, modern courts want to see some evidence of mental deterioration in addition to the wrongheaded ideas. In Jane’s case, her mother had been diagnosed with dementia. English courts in the 1800’s were more flexible, perhaps because it was harder to come by a diagnosis in an age where people thought magnetism and mesmerism could cure you of disease. Back then, a persistent and obviously wrong set of beliefs could be used to set aside a will without supporting medical evidence from a doctor.

One way or the other, you need to see a lawyer if you have been disinherited. The problem might be reversed. See the lawyer quickly. Delay allows the estate to disappear into the hands of the wrong people. Once that happens, it is difficult or impossible to get it back.

John Poyser practices as a wills and estate lawyer with The Wealth and Estate Law Group (Alberta). A former chair of the Wills, Estates and Trusts Section of the Canadian Bar Association, he co-authors a textbook for lawyers and accountants on trust and estate taxation. Contact him at (403) 613-2128 or jpoyser@welglawyers.ca , or visit www.welglawyers.ca

© John E. S. Poyser 2009.

This article was current when it was written. No effort has been made to update it. It is not a replacement for legal advice.

Jack Wilson could neither read nor write, and signed his name by making an “X.” Living in the Maritimes, he amassed some 250 acres of land, had a handful of children, and survived two wives before dying on March 28th, 2006 at the age of 94.

When he died, one of his granddaughters produced a will dated December 10, 2003. Her name was Lucinda. The will left half of the estate to her.

Other members of the family challenged the will, and the matter went to court. A curious story emerged.

There were actually two wills. There was the will that Lucinda liked, signed just before Christmas in 2003 and cutting her in for half of the estate. There was also an earlier will, dated ten months earlier in 2003 just as spring was breaking. Lucinda hated that will – it had nothing in it for her.

When the first will was drawn, Jack went to his longtime lawyer. The lawyer later commented that at the time the will was made, Jack was bent over, frail, hard of hearing, and used a cane.

No surprise there, Jack was 91 at the time, and had suffered from diabetes and kidney failure for several years leading up to the spring of 2003 when the will was done. He was gradually dwindling away.

The lawyer testified that Jack was clear about what he owned and what he wanted. Jack wanted his wealth to go to the children who were collectively helping him with day to day living at that time. The lawyer prepared a will, and then read it over with Jack. Jack signed it by making his “X” at the spot where a signature would normally go. Jack asked the lawyer to store the will for him at the lawyer’s office. That was that.

Ten months later, Lucinda made an appointment with another lawyer to have the second will prepared. She told the new lawyer that she was going to bring in her grandfather because he wanted to make a new will. That lawyer testified that she met with the client three times, and that he was elderly but able to describe his assets and family tree with good detail. Again, the lawyer prepared the will, read it over to her client, and her client made an “X” instead of a signature when it came time to sign.

When the second will was prepared, there was no cane. The client’s hearing was fine. He was not stooped over. The client was old, but appeared to have some spring in his step.

Either the will was signed by an imposter or Jack was aging in reverse, like the movie character in “The Curious Case of Benjamin Button.”

The situation became clearer as additional facts came out during the court case.

At some stage, papers were signed to make Jack’s bank accounts joint with Lucinda. At his death, there was no cash in the estate to pay for the probate process.

Late in 2003 Lucinda had asked her grandfather to sign some papers relating to his house, ostensibly so she could help him out with his realty taxes and a zoning problem. Jack showed the papers to another family member. The papers turned out to be a deed to his house. Jack refused to sign them.

It looked like Lucinda had been involved in a systematic effort to fleece her illiterate granddad.

The court had no trouble in throwing the will, and Lucinda, out of court. The estate went to the heirs that Jack had named in his first will when he met with the lawyer he knew and trusted.

There are a couple of interesting lessons here.

First, greed is transparent. If Lucinda had stopped with the sneaky will, she might have got away with it. She went on to try the swindle on the land, and joint ownership on the bank accounts. The pattern screamed of deceit. The family, and the first lawyer, were understandably suspicious and were looking for a reason to set aside the will.

The second lesson is for lawyers. The lawyer who met with the spry imposter did not ask for identification or take a picture of the client. The lawyer blindly relied on the honesty of the two persons in her office. That is not out of the ordinary. It is what lawyers generally do. The client’s signature normally vouches for the authenticity of a will. When an “X” is involved, it is harder to check. The same is true when the client is very old or very sick, and the signature is very, very shaky. Perhaps lawyers should be asking for identification in those cases, or photographing their clients.

The story of Jack and his curious will is a true one. The details were taken from the published decision of the judge who heard the case. Names were changed to save the family embarrassment.

John Poyser practices as a wills and estate lawyer with The Wealth and Estate Law Group (Alberta). A former chair of the Wills, Estates and Trusts Section of the Canadian Bar Association, he co-authors a textbook for lawyers and accountants on trust and estate taxation. Contact him at (403) 613-2128 or jpoyser@welglawyers.ca , or visit www.welglawyers.ca

© John E. S. Poyser 2009.

This article was current when it was written. No effort has been made to update it. It is not a replacement for legal advice.

Mr. R. Dodds lived in England while World War Two was in full swing. He was divorced from his wife, and had four children.

He lived in trying times. The Battle of Britain had been waged and won. England had been heavily bombed. The invasion of France seemed an impossible task. On July 26th, 1942, the British Minister of Food had announced a tightened ration for chocolates and sweets (a half pound per person each month).

Three days after the chocolate ration was announced, and unbeknownst to Mr. Dodds, a personal war was declared against him on July 29th, 1942. The aggressor was a Mr. Piper, who launched his offensive in a lawyer’s office by signing a will. The will would, at Mr. Piper’s death, set aside two large funds of money, one for the wife Mr. Dodds had divorced and the other for the four children Mr. Dodds had sired.

The will was signed in secret, but hostilities broke open six months later when Mr. Piper died on January 30, 1943 and the will was read over and put to probate.

First, there was the fund for Mr. Dodds’ ex-wife. The fund was to be invested and structured so she was to receive the income, but the income would end if she moved back in with Mr. Dodds.

Then there was the fund for Mr. Dodds’ children. The children would get the money at age thirty but only if they did not live with their father, Mr. Dodds, prior to attaining that age.

It was a curious kind of war. The clauses, if valid, prohibited cohabitation between Mr. Dobbs and his ex-wife and children, but not contact. The condition governing the children, for example, provided that if they set foot, day or night, in any premises that their father owned or rented, they lost the inheritance from Mr. Piper. They could see their father in the street, attend the theatre together, go out for a meal, but could not cross the threshold of his home without fear of losing the inheritance. Mr. Piper’s intention with his will appears to have been to force Mr. Dobbs to sit alone, in an empty house.

The will was awkward for everyone. It was awkward for the executors who were charged with handling the estate. Think about it — were the executors supposed to post someone in the bushes outside of Mr. Dobbs’ flat? How else would they monitor the comings and goings of visitors?

The will was so awkward that everyone took time off from the real war to go to court and have the offensive provisions of the will declared void. The court rewrote the will by striking out the conditions preventing co-habitation. The ex-wife still got the income. The kids still got the inheritance at age thirty.

The story of Mr. Dodds and Mr. Piper is a true one. The details are taken from the published decision of the judge who heard the case.

The law will not allow a clause in a will that disinherits family members if they have contact with each other. A clause having that effect can be struck down by a judge as being against public policy. In lawyer talk, the clause is malum prohibitum (lawyers love Latin).

Other types of clauses are prohibited. Clauses that compel beneficiaries to break the law are not allowed. The law gives judges a general discretion to strike down clauses in wills if the operation of the clause fosters behavior that is harmful to the community.

Clauses that encourage good behavior are allowed. Thus, a provision can be built into a will that provides a generous income for beneficiaries who are attending university. Clauses can be constructed requiring beneficiaries to exercise, or volunteer with charity, or stop smoking and remain nicotine free.

Some clauses are harder to characterize. A rich lawyer died in Ontario at the beginning of the last century setting up a contest and leaving a huge fortune to the winner. What was the contest? The winner was to be the woman, whoever she might be, who could give birth to the most babies in a ten year period following hisdeath while residing in the Toronto. The clause was attacked by family members hoping to strike it down as against public policy. It encouraged people to have babies – thought in most circles to be a good thing. It encouraged people to have a lot of babies — too many babies can be a bad thing. What did the court decide? The clause stood. The contest resulted in a tie, and the fortune was split among four mothers who had each given birth to nine babies during the ten year period.

Next month’s column: “War chest” clauses.

John Poyser practices as a wills and estate lawyer with The Wealth and Estate Law Group (Alberta). A former chair of the Wills, Estates and Trusts Section of the Canadian Bar Association, he co-authors a textbook for lawyers and accountants on trust and estate taxation. Contact him at (403) 613-2128 or jpoyser@welglawyers.ca , or visit www.welglawyers.ca

© John E. S. Poyser 2009.

This article was current when it was written. No effort has been made to update it. It is not a replacement for legal advice.

Bill Smith had two sons by his first wife, and then a daughter by his second. His second wife, Mary, appears to have been headstrong and intelligent.

When Bill and Mary were in their 80’s, they arranged to have their daughter move in with them to help out. It worked out well. Their daughter needed a place to live. They needed the help around the house. Bill ended up in a wheelchair, and their daughter worked hard.

Bill and Mary were grateful. They decided to change their wills to give the house to their daughter after the second of them died.

The new wills were signed, and everything was good until the two sons found out what their father and stepmother had done. They hated the idea that their stepsister would get the house. The boys were quick to interfere, but slow to help out.

The boys tried to pressure their father, Bill, and stepmother, Mary, to change the wills back, and leave everything (including the house) in three equal shares. Mary was having none of that. With Mary at his side, Bill was also able to withstand the pressure his sons put on him. The wills stayed as is.

As the years rolled on, their daughter continued to take care of Bill and Mary. Bill was forced into a personal care home. Mary contracted cancer.

It was clear to Mary that she would die first. It was a matter of months for her. She was still mentally sharp, and made a prediction. She predicted that as soon as she died, her stepsons would approach their father in the personal care home, and he would sign anything they asked him to. Further, the new estate plan would strip their daughter of her claim to the house – something that Bill and Mary had genuinely wanted to see happen. Their daughter had been working hard to make their lives better. She asked little or nothing in return. The situation was a little like the Cinderella story.

So Mary took one last series of steps to protect their daughter from Mary’s stepsons. She hired a lawyer of her own. She altered the title to the family home so it was no longer in joint tenancy. That meant that a half-interest in the house would fall into her estate. She then redid her will to leave that half interest to their daughter.

If Mary’s estate plan held up, their daughter would get half of the house and nothing the boys or Bill did could alter that.

Her prediction came true. Shortly after she died the boys swung into action. Changing Dad’s will was no longer enough. They had to overturn their stepmother’s estate plan. Bill, as predicted, let them run the show. They hired a lawyer in Bill’s name and went to court to attack Mary’s estate plan. They claimed that the cancer had addled her brain.

Here was their problem. It was clear that Mary was shrewd and mentally capable right to the end. Their case was a dud. The judge found in favour of the daughter.

There are two things we know about lawyers. They like Latin, and they are expensive. The daughter’s lawyer charged $118,111.76 to win the case. The sons’ lawyer charged $99,592.36 to lose it. There are situations where the estate will pay everyone’s legal fees. The rule changes when litigation is stupid and mean-spirited. Bill was ordered to pay the legal fee his daughter had incurred. The terrible thing here is that Bill was the puppet of his sons.

There are several lessons to take away from this story. First, blended families tend to fight after the death of one of the parents. Second, kids often push old and doddering parents into the ring to fight for them. Third, a well constructed estate plan will not break apart when someone tries to hammer it. Fourth, hiring lawyers and litigating can be hugely expensive. Fifth and finally, if you push a weak case and lose, you can pay huge court costs.

Bill and Mary’s story is a true one. The details were taken from the published decision of the court that heard the case. Names have been changed to save the family embarrassment.

Next month’s column: estate planning home movies.

John Poyser practices as a wills and estate lawyer with The Wealth and Estate Law Group (Alberta). A former chair of the Wills, Estates and Trusts Section of the Canadian Bar Association, he co-authors a textbook for lawyers and accountants on trust and estate taxation. Contact him at (403) 613-2128 or jpoyser@welglawyers.ca , or visit www.welglawyers.ca

© John E. S. Poyser 2009.

This article was current when it was written. No effort has been made to update it. It is not a replacement for legal advice.

Very little is known about the Reverend John Gwyon, but a great deal is known about his estate plan – one of the most bizarre forays into succession planning known to English legal history.

Reverend Gwyon made his will on May 25, 1912, in the shadow of World War I. His will dedicated the whole of his fortune to the establishment of a foundation. That foundation was to exist for the sole purpose of providing boys who were resident of the Farnham district of England with one new pair of knickers each year.

Also known as knickerbockers, knickers were a form of short pants gathered just below the knee. To be eligible for a pair of knickers from the foundation a boy had to be between the ages of ten and fifteen. To get a replacement pair, the boy had to turn in the old pair. Money from the foundation was to be used for “no other purpose whatsoever, whether educational or otherwise.”

We can only speculate as to what the Reverend John Gwyon was thinking. We can presume he was a bachelor.

Not being content to leave his curious and questionable legacy unrefined, he then amended his will five times over the ensuing six years.

Fearful that he might not have been specific enough, his first amendment declared that the word knickers meant “ordinary strong and durable knickers such as were worn by boys every day, but no sporting or fancy knickers of any kind such as football knickers, cricket knickers, military knickers, boy scout knickers, etc.”

Worrying that the trustees of the foundation might be diverted from their work by war or other calamity, his second amendment made it clear that “in case of extreme national or local distress, cause, emergency, or other reason whatsoever the foundation should never be diverted by the trustees on the application of any person or public body to the relief or on account of such distress, emergency, cause or reason, but should always be applied as specified for boys only….” It was knickers or nothing.

Mindful of the lasting mark he felt he was about to make, his third amendment stipulated that the foundation should forever remain unchanged and dedicated in his name as the “Gwyon’s Foundation for Clothing Boys.”

Making what he would have viewed as an important policy concession, his fourth amendment declared “that each successful boy… might, if he desired, choose a pair of trousers instead of kickers.”

Becoming more and more liberal in his largesse, his fifth amendment directed that the benefits of the foundation created under his will “should not only extend to the district…but should also extend to the points three miles or so outside of the boundary.”

Having perfected his plans he left the will untouched over the ensuing twenty years until his death in 1928.

His will was challenged in court. Five lawyers wrangled in court for three days. A substantial sum of money was in dispute – John Gwyon had been wacky but wealthy. At the end of those three days a judge ruled that the will failed and “Gwyon’s Foundation for Clothing Boys” never got off the drawing board.

Hidden and almost totally obscured in the bizarre detail of John Gwyon’s estate plan and the court case that followed is an obscure legal lesson about the law of trusts. The case is still taught in law schools. Generally speaking, a trust cannot be set up to further a purpose unless the purpose can be characterized as charitable. The judge concluded that Reverend Gwyon had not been motivated by charity.

There is a more practical lesson to be learned. With a few wording changes to make the purpose more clearly charitable, the trust would have been upheld. John Gwyon almost succeeded in making his mark.

What about you? Your estate plan can be an excellent way to make a mark in the community. You can support your old school matter, relieve against child poverty, support the arts, or pursue any manner of other charitable end. You can go it alone, like Gwyon, or get appropriate help. The very wealthy set up private foundations. For persons with less wealth, they can approach organizations like The Calgary Foundation. The staff there can help you set up a fund, and define the charitable benefit you would like to confer on the community. The Foundation structure ensures you stay on track, and don’t go afield.

Next week’s column: An estate planning lesson from Napoleon.

John Poyser practices as a wills and estate lawyer with The Wealth and Estate Law Group (Alberta). A former chair of the Wills, Estates and Trusts Section of the Canadian Bar Association, he co-authors a textbook for lawyers and accountants on trust and estate taxation. Contact him at (403) 613-2128 or jpoyser@welglawyers.ca , or visit www.welglawyers.ca

© John E. S. Poyser 2009.

This article was current when it was written. No effort has been made to update it. It is not a replacement for legal advice.