Can my son challenge my will?

Q. I have two children. My daughter is happily married with two children and my son is single and never plans to marry. Can I leave my entire estate to my daughter and two grandchildren and safely assume that even if my son challenges the will he will not receive anything? He’s 50 and fully on his own, working as an officer manager with the city.

—Anna P., via moneysense.ca

A. Be careful of disinheriting dangers, Anna. You ask if you can safely leave your estate to your daughter and at the same time, disinherit or cut out your son. These actions can increase risks that your son may contest your will.

You didn’t give any reasons for doing this and reasons are important when you disinherit a child.

Keep in mind that your will can be contested on a number of grounds. Therefore, I suggest you do a couple of thing to ensure your wishes are carried out as specified:

Use a lawyer to protect your wishes

Your lawyer will ask you for your reasons for wanting to leave your son out of the will. I assume the reason is not because your son doesn’t call you. Lawyers can advise if you have legitimate reasons for disinheriting your son. Most importantly, your lawyer will record your reasons. This is helpful because if the will is contested, your lawyer’s evidence can support your wishes.

It’s key that your lawyer see you privately to advise you. This also protects your daughter since she could be accused of unduly influencing you to cut your son out of the will. Undue influence is another reason why wills are contested. Be sure you get independent legal advice from your own lawyer, meaning your daughter cannot be present.

Your legal and financial obligations

Of course, your son can contest your will for not meeting your legal or financial obligations. Legal obligations could arise from promises you made to your son. For instance, did he rely on your promise to his detriment? I mean, did your son give up something because of your promise? He may have quit his job to care for a relative. Did you promise to reward him in your will? If so, he’d have legal grounds to contest your will.

Courts can also enforce promises relied on by individuals. An example of that would be if your son is financially dependent on your financial support. If so, you may have a duty to continue supporting him. Each province has laws that impose support obligations on your estate. They usually apply to dependent children.

If your adult son is financially independent no legal support obligation may exist. This may be why you prefer your daughter. Your son may not need your money but your daughter does. Is this your reason to cut out your son? Whatever the reason, I trust you’d explain this to your son. Ideally, you’d do this before you sign your will. You can then give him your reasons and deal with his concerns. Otherwise, your son may be scarred, left wondering what he did to deserve this.

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Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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