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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 100408
Experience:  Lawyer
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Background My mother-in-law (a dual US Canadian citizen)

Customer Question

My mother-in-law (a dual US Canadian citizen) left an estate in excess of $10 million Canadian. She rewrote her will in 2001 upon the death of her only daughter (my late wife) leaving the bulk of the estate to her grandson, my son who lives in the US. In 2011 she rewrote the will. We are trying to get copies of the 2001 will to determine the changes made. One significant change was the payout to my son. We understood that he was to receive equal payouts at 25, 35, 45, and 55. The new will starts the payouts at 45 with subsequent payouts at 50 and 55. 3 to 4 years prior to writing the second will, we have a report by a well-known gerontologist who stated that she had had dementia for the past four years. We were told that the mandatories had taken no action and since she mentioned to her physician that she and her financial planner/accountant had withdrawn $100,000 in cash. Upon his recommendation we started proceedings to have her put under protective supervision. In the psychosocial report the social worker stated that she had dementia and was controlled by her financial planner/accountant. In the report she also stated that she believed the accountant/financial planner was involved in questionable activities; she felt that he should be investigated for elder financial abuse. Needless to say, the financial planner/accountant is one of three liquidators to her will and apparently has taken the lead in the liquidation of the estate. Although we have not seen her US estate tax report, we have reason to believe that some liquid assets were not reported.
1. How good a case for the reinstatement of the previous will does this appear?
2. Given that the other two liquidators are following the lead of the financial planner/accountant, how good a case would we have to have them replaced?
3. In the latest will she states that her estate can be used for my sons education and maintenance, but stipulated that this was not required of the liquidators. Is this a common stipulation?
4. Because of the stipulation, if a court case is instituted, is there any way to protect his current stipend?
Submitted: 1 year ago.
Category: Canada Law
Expert:  N Cal Atty replied 1 year ago.

Thank you for your questions.

I have to ask where and when the Will was probated.

Customer: replied 1 year ago.
Montreal, Quebec 2014
Expert:  N Cal Atty replied 1 year ago.

I have to ask the moderators to move your question to the Canada Law experts.

Expert:  Debra replied 1 year ago.

I am sorry to hear this.

If you can prove that your mother-in-law was not mentally competent at the time that she signed her last will then the court would set aside that will and her second last will take its place.

As well, it is possible to successfully contest the will if you can prove that the testator was under undue pressure at the time that she signed her will.

It is possible that in the will she set out provisions allowing the executors of the will to have sole and unfettered discretion in which case they could say that no monies can be taken ahead of time but that would be strange for them to do this if they are looking out both for the testator's wishes and for the best interest of your grandson as they owe him a fiduciary duty.

Even if the Will cannot be set aside because you failed to prove what I discussed above it will still be possible to have the executors removed if they are not adhering to their fiduciary duty. Given that this one executor seems to have profited usually,at the best case sceanario, by acting for your mother-in-law the court would be highly suspect I would think.

Your best next step would be to be to retain an experienced estate litigator in Montreal. There is a significant amount of money at stake and this should not be let go of course.

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