Suffering death in the family is always a difficult affair, which is only made more difficult when family members start dragging each other through court. A death can open old wounds and in grief people sometimes insist on extreme courses of action. Unfortunately, there is also a growing sense of entitlement in today’s society. Children often see their parent’s house or money as their inheritance and feel they have some say in how their parents spend that money.
In a recent fight that made it to the BC Court of Appeal, Moore v. Moore, 2012 BCCA 266, Mr. Moore brought five lawsuits against his family after his grandmother’s death. Mr. Moore had been cut out of the will for having stolen from his grandmother. In one lawsuit, he sued his mother for defamation, claiming she had told his grandmother lies about him stealing.
That lawsuit and the appeal was dismissed. He then sued his mother for a fraudulent breach of trust. Mr. Moore also tried to attack the will, claiming that she did not have the mental capacity to make a will. In that case, Mr. Moore did not provide any evidence that his grandmother lacked capacity, and this lawsuit was also thrown out. The court found that it was not in the interests of justice to prolong Mr. Moore’s meritless litigation. By the conclusion of the third lawsuit, Mr. Moore had been ordered to pay $17,500 in costs.
In an Ontario case, Re Estate of Ruth Smith; Smith v. Rotstein, 2012 ONSC 4200, there was lengthy but frivolous estate litigation when a disinherited daughter attacked the will. The daughter and her parents had a long and bitter estrangement due to a falling out described by the family as “the Hiroshima”. In this case, the court upheld the disinheritance and ordered the litigious daughter to pay costs of approximately $737,000.
In another BC case, Ketcham v. Walton, 2012 BCSC 175, a man decided to disinherit his three adult children. He knew they would fight his decision, so he put in his will that the executor was to use all of the money in the estate to defend against any lawsuits from his children. The children did, in fact, start a lawsuit, and the executor asked the court to direct him on how he should proceed. Unfortunately, the deceased’s approach did not work as executor must remain neutral, and the court found that this kind of clause was against public policy. The estate was however allowed to pay the executor’s legal fees for seeking the direction of the court.
While there is no way to completely stop people from fighting from beyond the grave, there are ways to make it less likely or more difficult for anyone who tries. Keep your eyes open for my next article on ways to protect your estate from lawsuits.
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.