My mother passed away 17 days after my brother passed away. Her will states that her estate is to be distributed to her children and named the children. The Will does not state after the named beneficiaries "provided that they survive me". My brother's wife feels that she is entitled to my brother's share of my mother's estate. Upon researching this, I read that when neither 'per sterpes' or 'per capita' are mentioned in a Will, that the Courts will assume 'per capita' distribution, which means that if there are six children and one is deceased, the estate will be divided equally among the remaining 5 children. This is in fact what my mother wanted to happen and had a clause put into her Will that she expected to cover this. We are being told now that this clause only refers to divorce proceedings in the event of a divorce so that the Will is not treated as 'Common' in the divorce settlement. Does my brother's share go to his spouse? My brother and his wife have no children. Can you please advise. thanks
Province/Territory relating to question: Ontario
Other web sites that simply tell me to hire a lawyer.
Your mother went so far as to name the specific children so the gift to a deceased child fails and that amount goes into the estate
In your case as you all split the estate your deceased brother's share goes to you and your siblings and does not go to his wife.
I am sorry for your losses. I hope you can get through this most difficult time.
Debra -Thank you for your reply. We have been told the opposite by the solicitor we have handling the estate of my mother and have been advised that my brother's wife does get his share of my mother's estate. Our lawyer claims that because the Will did not specify in that particular place in the Will after naming the beneficiaries "provided they survive me" that it does in fact go into my brother's estate and ultimately will go to his wife. Can you please tell me on what basis that you are stating that she will not be entitled to his share of the state and will the court rule in favour of the surviving children when the Will is probated? We live in Niagara Falls, Ontario - Thanks
If you mother wanted someone's estate to get their share she would have said so.
And even if she has said per stirpes the children of your brother would get his portion and not his spouse.
His spouse has no basis for a claim.
If this went to Court the Court would strive to determine your mother's intention which seems clear to me.
I suggest you get a second opinion.
You can contact the Law Society and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be free. The number is: 1-800-268-8326
Debra - Thank you so much for your valued advice. Below is the explanation by e-mail we received from the lawyer on how he interprets our deceased brother's share be distributed. This does not make sense to us because he died before our mother and he has no children which this lawyer was informed of. Can you tell me why he would be taking this stand which is opposite to what you are telling us and it goes against our mother's intentions. What should we take to our lawyer to defend our case? We are also definitely contacting the Law Society on your advice.
I don't see the email.
Please try again.
Also I am suggesting you use their referral service but not suggestion that you actually contact the law society.
Sorry I hit enter and the message was sent before I pasted the e-mail and I wasn't able to resend it. See below for the e-mail from the lawyer. Also, I will phone the number you gave me for the referral service.
After researching the relevant rules of estate administration applied to the circumstances of your case, I have concluded that Keith’s share of your mother’s estate must be distributed to his spouse and children.
The language in paragraph 5(b) of your mother’s Will gives gifts to individuals “if such person survives me”. That language is not used in 5(d), so Keith’s share is not conditional upon him surviving your mother. Therefore, it must be interpreted as if (a) Keith died immediately AFTER your mother, and that he died (b) without debts, and (c) without a will. Note, however, that if Keith had actually died without a will, then his spouse normally would be entitled to a “preferential share” of his estate, but in these circumstances, his spouse is NOT entitled to that preferential share.
Please advise how many children Keith had (even if they predeceased him), their names and ages, and the name of Keith’s spouse, so that I may advise you of the proper distribution of Keith’s share of your mother’s estate
I think you need a second opinion.
Lawyers disagree of course. That's why lawyers are needed. We would be without jobs if all was black and white.
I do not see this the way the lawyer for the estate does.
But I am not your lawyer.
So please get a second opinion from someone who can read the Will in its entirety.
Thank you very much for your information and we will definitely seek a second opinion.
Debra - I took your advice and got a second opinion from another lawyer and he said that you were wrong. We don't have a leg to stand on - the fact that my mother named the people in her Will does not matter.- he also told me that the court does not strive to determine the intent and that the Will was prepared very poorly because it was prepared by an Accountant and not a lawyer. We were told that because the statement "provided they survive me" was not present after all of the names of the beneficiaries that we were out of luck, even though it was present everywhere else, where specific items were Willed to specific people.
I guess that's why lawyers all have jobs as we are paid to argue and we never see eye to eye.I don't agree at all as you know.
I actually did click accept when we finished the first time around. I don't know why it did not register as accepted. It appeared to have gone through ok at my end. I also saw a check mark on my last reply to you just now which indicated that it had been accepted already. I cannot click on the 'accept answer' on this page - nothing happens. I hope I am not charged twice.
For sure you clicked accept. That message you got was just part of my signature.Clicking accept never charges you anyway. It just tells the site they can pay me.