Deadman
Ottawa, ON
Male, 60
I help craft client estate plans; advise estate administrators and substitute decision-makers on their legal authority and responsibilities; and act as a mediator in estate disputes. In responding to your questions, I am providing legal information only; I am not giving legal advice and my response should not be construed as legal advice. Every situation depends on its own facts and you should therefore retain your own lawyer to obtain proper legal advice on your situation.
The whole system of property rights is premised on ownership by a legal entity. Your horse or your cat doesn't qualify. Depending upon the laws of your jurisdiction, it may be possible to create a trust, imposing upon someone the obligation to invest the property and use it to maintain or enhance a pet's quality of life. However, if you have a Galapagos giant tortoise, you are headed for trouble because there are usually legal time limits -- 21 years from the date of the owner's death is typical -- imposed on how long such a trust may run. And remember that preferring a pet over a close relative is likely to cause a (dog)fight after your death.
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That depends on whether the will is being submitted to a court for probate. If it is, anyone with a financial interest in the estate can file a caveat or objection to the court's issuance of the grant of probate. One of the objector's allegations may be that the will was forged or tampered with and therefore does not represent the testator's real testamentary intention. An executor who is attempting to administer the estate without probate can be forced to submit the will for probate to confirm its validity, thereby giving the objector an opportunity to challenge the will's validity.
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In 30 years, I can't recall this ever having happened with one of my clients. It's certainly not an appropriate means by which to communicate such information. That is not to say that family members are not surprised at the contents of the Will, but any surprise will generally relate to who gets what or how much -- you know, the kind of thing one might expect to see in a "New Yorker" cartoon centred around the "reading of the will" -- which is, by the way, an anachronism.
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I have seen a few unusual contingencies. Among Wills I have drafted, the most memorable one involved a bequest of $50,000 to the testator's son, with a provision that it would be cut down by one-half if the son showed up at the funeral wearing an earring. I asked the client, only slightly facetiously, if he expected someone to show up at the funeral with a camera to take a photo of his son, so as to be able to determine if the bequest was to be paid in full or cut in half. But to consider your specific example, this is what we sometimes refer to as an "incentive trust". It is a sum of money set aside for a beneficiary as a carrot intended to induce certain positive behaviour or to discourage certain negative behaviour. There has been quite a bit written in legal literature -- and perhaps in the field of psychology as well -- on the pros and cons of using incentive trusts. From the lawyer's perspective, there are a few issues that must be considered. Firstly, is there some public policy reason a court might rely upon to refuse to give effect to the contingency -- for example, because the behaviour sought to be induced is unlawful or distasteful (such as being tied to marrying, or not marrying, someone of a particular faith)? Secondly, it is important that the contingency be objectively determinable; that is, there should not be any dispute as to whether the contingency has been satisfied. And thirdly, there must be a reasonable, and specific, time frame set out for the contingency to be met. You don't want the trustee holding the funds to have to wait for an indefinitely long period of time to see whether the condition has been met.
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My own observation after 30 years in practice is that there are two situations where a fight over an estate will break out: firstly, where there is not enough money to go around; and secondly, where there is too much money to go around. There are at least three grounds upon which to challenge a will: (i) the legal formalities for making a will were not observed; (ii) the person who made the will was not mentally capable of doing so at the time; and (iii) the person was subject to undue influence or duress, meaning that it really was not his or her testamentary intention reflected in the document. A fourth possibility in some jurisdictions is that the person left out had some "moral" entitlements; for example, an adult child who appears to have been excluded for no good reason. But keep in mind that there may be serious implications about legal costs if you lose the fight. You may have to pay your own legal costs and a significant part of the legal costs of the "victors".
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That's a tricky question. Not every will of doubtful validity becomes the subject of a court challenge. And of those that do, the dispute may be resolved not as a result of a judicial prounouncement but because of an out-of-court resolution among the interested parties. Without a review of all of the decided cases, no-one could give you an informed response to your question. However, from my observation of the decided cases that come to my attention, I would say that the two most frequent bases are (i) lack of the requisite mental capacity to make a will; and (ii) duress or undue influence. These are the cases where there are factual disputes that drive people into the courtroom.
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In most jurisdictions, advances in succession law take place at glacial speed. A will has to be in writing and has to be signed by the testator (sometimes with witnesses, sometimes not). However, some wealth can be conveyed by means of a beneficiary designation -- life insurance proceeds being the most widespread example -- where there is no witnessing requirement. In some jurisdictions, laws have been enacted to allow for electronic signatures in commerce. While such laws usually have an express exclusion for wills, they may not exclude beneficiary designations. In those jurisdictions, it will evidently be possible, by means of an e-mail, to make a beneficiary designation that directs who will receive proceeds of life insurance, a retirement savings plan or a pension plan. Of course, the flip side -- the dark side? -- of such convenience is that it opens the door to fraud. Who is to know whether the deceased, who was found slumped over the keyboard of his computer, was the real author of the e-mail that purported to designate the beneficiary of his life insurance?
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