What recourse does a disinherited heir have?
Following the death of a loved one, the question of inheritance arises. In principle, the surviving spouse and children of the deceased are the heirs. However, sometimes the will unfairly excludes the rightful beneficiaries of the deceased’s assets by naming a third party. So how do you take recourse on behalf of a disinherited heir?
All about inheritance
If the testator has full powers to organize and draw up his will, what are the heirs left with?
The absolute freedom of the testator
In Canada, the law grants absolute freedom to testate to those capable of doing so. The testator is free to designate the heirs to his or her estate. This freedom offers no guarantee that a loved one will benefit from a share of theinheritance. Consequently, not all the testator’s heirs can secure a place in the will.
Despite this privilege, the testator cannot enrich himself at the expense of others. In other words, assets acquired through the services or contributions of a spouse cannot be disregarded. The spouse has the right to sue for unjust enrichment, according to article 1493 of the Quebec Civil Code.
In the absence of a will, the de facto spouse cannot recover a share of the inheritance.
The testator’s obligations towards family members
The testator’s death does little to relieve him of his obligations towards his children and spouse or ex-spouse. The testator cannot escape alimony payments. In the absence of alimony, the beneficiaries file a claim 6 months after the death to ensure the success of the action.
As a reminder,alimony is an essential institution of family law, especially if it is paid to a financially dependent infant, married spouse or civil union partner.
However, in accordance with the rules of intestate succession (succession without a will), the law sets a ceiling on alimony payments. It may not exceed half the share to which the child and spouse are entitled.
What if the testator acts in bad faith?
During his lifetime, the testator can change the paragraphs of his will as he sees fit. He can go back on his decisions and promises of inheritance. However, modifications must not exceed the limits of good faith. The testator may not abuse his freedom to modify. An heir who has performed services in exchange for an inheritance may apply to contest the will and receive damages. This measure applies in the context of an action for unjust enrichment, in accordance witharticle 1493 of the Civil Code of Quebec.
The amount of damages will be calculated according to the court’s decision. In most cases, it is expressed as a percentage of the total value of the estate.
When is a will invalid?
Certain situations invalidate a will. Article 761 of the Civil Code of Quebec stipulates that the nursing staff of a health care facility, where the testator received care, cannot receive an inheritance. This invalidation thus overrides any paragraphs in the will to the contrary.
In other words, the court declares void a will that bequeaths property to a nurse, doctor or any other person who works in the healthcare facility where the testator received care during the last days of his or her life. This provision also applies to notaries, religious figures…
This provision has been applied because of reprehensible maneuvers and influences to obtain a testator’s favor. Before invalidating a will, the court examines the testator’s state of health, family background, social context, behavior, vulnerability and age when drawing up the will.
What are the inheritance issues?
The testator’s privileges and the heirs’ right to contest often complicate the liquidation of the estate.
Compulsory shares for heirs with right to reserve
Article 912 of the French Civil Code refers to ” heirs reservataires”. It defines the minimum share of inheritance for each heir, as well as the available portion that the testator may distribute as he sees fit (by will or gift). The testator is thus prohibited from excluding children and the surviving spouse from the succession.
The main problem lies in determining the share of the estate reserved for the heirs with right to reserve and the available portion. The number of children is taken into account in the calculation. An only child inherits half of the deceased parent’s estate, while the other half can be redistributed as the testator sees fit. With 2 children, each receives a third of the estate, while the remainder is freely distributed by the testator. With 3 or more children, the available portion is a quarter, and the remaining three-quarters are redistributed to the children in an equitable manner.
Is it possible to exclude a child from the estate?
As a general rule, it is impossible to disinherit a child. However, the legislator proposes a way around this rule, only if the heir is unworthy of inheriting. Articles 726 and 727 of the Civil Code stipulate that anyone sentenced to a criminal or correctional penalty for attempting to kill a testator is unworthy of inheriting. The perpetrator may be excluded from the estate. The law also applies to heirs who give false testimony or slanderous denunciation, leading to criminal proceedings against the testator.
In addition, any action aimed at demonstrating that an inheritance has been concealed or misappropriated is condemnable and will put an end to the succession.
How to disinherit using life insurance?
Life insurance is a non-transferable asset. It is excluded from the calculation of the available portion. The deceased may, during his lifetime, take out life insurance and designate a beneficiary of any kind, which may be a person outside the family circle. The coverage thus disinherits a specific heir, or even the children and spouse, who will have no recourse.
However, an aggrieved heir may contest the life insurance policy on the grounds of indirect gift or manifestly exaggerated premium. The recourse requires the intervention of an expert, in this case a lawyer specializing in inheritance law.
How do I appeal on behalf of a disinherited heir?
If you feel you have been wronged, you can take legal action to obtain justice.
Contact an inheritance lawyer
The first step is to contact an estate lawyer. He or she will help you establish your rights and understand your obligations.
Taking legal action is a complex matter, given the variables involved: the presence of life insurance that prejudices an heir, an international family, the statute of limitations for legal action, the nature of the family relationship, etc. Fortunately, the legal expert will help you organize the estate.
Taking legal action
Legal recourse varies according to the situation. An aggrieved heir may bring a claim for maintenance. An heir who has been the victim of a testator’s bad faith can seek unjustified enrichment. The same recourse is available to an aggrieved surviving spouse who has contributed to the enrichment of the deceased’s assets.
Other heirs may contest the testator’s mental faculties at the time of drafting the will.
How to avoid being disinherited?
To avoid being disinherited, the best option is to obtain the testator’s consent during his or her lifetime and persuade him or her to include you in the will.
Contact the testator
Lack of communication leads to family tension, which is the most frequent reason for excluding an heir from a will.
Communication is essential and must be a two-way process. On the one hand, the testator expresses his wishes and expectations of his heirs. On the other hand, the heirs express their demands with regard to the testator and his property.
Learn about inheritance settlement procedures
Few heirs are familiar with the procedures for dividing up their estate. The difficulties that arise when the estate is received discourage them from pursuing liquidation. As a reminder, the process is based on the donor’s objectives. He or she may decide to deposit funds in a trust that will distribute assets over a specific period, rather than bequeathing money directly to the heirs. Or he or she may decide to make a financial contribution to an insurance policy and then designate the beneficiaries of the benefit.
In all respects, it is in the heir’s interest to analyze the channels used by the testator to transfer assets, and to be aware of the instruments used in the liquidation. This precaution will avoid confusion and bad decisions.
Conclusion
Reserved heirs and married or civil union spouses can take legal action to contest a will that excludes them from the estate. This requires the intervention of an inheritance lawyer.
Despite the presence of a legal expert, the procedures can prove difficult. That’s why the best option is to contact the testator while he or she is still alive, in order to obtain his or her agreement and to include it in the will.
