Estates & Wills & Trusts

Disinherited children may have claims against estate

By Charles Ticker

Disinherited children may be entitled to share in lottery winner’s estate

A recent story from New Zealand found here is a very interesting scenario involving the estate of a lottery winner and his disinherited children.

A man died in 2015 with a will leaving nothing to his children. He had no contact with his adult children since 1974 when he separated from their mother. His will had instructions that no one in his family be told about his death.

The man also had apparently won the lottery at some point in his life. He had accumulated a substantial estate.

After the man died, one of his daughters attempted to find him because one of his adult children had cancer. She was able to ascertain that he passed away, and she also identified who the estate trustees were.

High Court proceedings have revealed that he had also created a family trust. The trust named his children as discretionary beneficiaries along with other beneficiaries including his grandchildren, nephews, and nieces.

The man instructed that all residuary assets pass to the family trust after gifts under his will were paid. The trust was set up so that family members could benefit from the capital income of the trust from time to time.

Court rules disinherited children may benefit from the estate

At the time of the court proceedings, the estate’s assets had not yet transferred to the trust. The court gave his children six months to decide whether to make a claim under the Family Protection Act.

The man’s family members are allowed to make claims against his estate under this legislation if they feel they have not been provided adequate support under his will.

The estate trustees were also allowed to set aside $1 million to care for the child ill with cancer.

The court instructed the estate trustees to ascertain who his grandchildren are and whether an application on their behalf had to be made under the Family Protection Act.

It is unclear why he left his children nothing but left a trust for the benefit of family members. The court intervened giving the children the opportunity to claim against the estate.

One positive aspect of this scenario is that the court allowed the estate trustees to fund the care of the child ill with cancer. The court has discretion to order various forms of relief.

In Ontario, claims for dependant support can be made under Part V of the Succession Law Reform Act. Section 57 defines dependants as the spouse (includes both married and common law), parent, child, brother, or sister of the deceased. The definition of a “child” under the Succession Law Reform Act includes a grandchild of the deceased.

This will be an interesting story to follow since it is unclear if claims will be made against the man’s estate.

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