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Cutting Someone Out of Your Will

In some instances, when making your Will you may decide that you do not want to gift to a certain person (that would otherwise have a right to inherit) or you would like to gift a nominal amount to someone rather than a larger share of your estate. Someone who would otherwise have a right to inherit would be your spouse or partner, your children, your grandchildren.

The most typical reasons for cutting someone out of your Will or providing a lesser gift than that person would expect are:

  1. The would be beneficiary has adequate assets to support themselves in the event of your death. This reason is typically used for spouses who have each brought substantial assets into the relationship and, more often, when one or more spouse has children from a previous relationship that they want to inherit upon their death;

  2. You have a strained or estranged relationship with the would be beneficiary (you do not get along or have no contact);

  3. You have provided for a gift or gifts to this would be beneficiary outside of your Will (ie. designated them a beneficiary to your investments, TFSA, RRSPS, pension plans, added them to title to property or otherwise gifted to them outside of the assets governed by your Will). For further information please see article: Not All Property is Governed By Your Will

  4. You and the would be beneficiary are legally married but are currently separated and plan on divorcing;

  5. The would be beneficiary is part of a government assistance program and you do not wish for them to be disqualified from the supports they receive under that program. It is important if you have a would be beneficiary on a government assistance program that you review the legislation governing the program to ensure an inheritance from your estate would not dis-entitle them to the program.

There may be other important reasons for cutting someone out of your Will or providing a lesser gift than that person would expect to receive.

When you start gifting uneven amounts to beneficiaries who would typically receive equal shares, there is great incentive for the beneficiary receiving the least amount to challenge your Will in court. For instance, you have three children but have an estranged relationship with one child. You decide to either cut them out entirely or you gift a small sum, like $10.00, to that estranged child, and gift the remainder of your estate equally to your two other children. That estranged child has great incentive to contest your Will in court to try to have it declared invalid so that they may receive a greater amount of your estate.

Whether you choose to "cut" someone out of your Will or gift to them a lesser amount than one would expect them to receive, you should ALWAYS have a statement in your Will addressing this so it is absolutely clear to everyone reading it that you meant to do so. More importantly, you want to make it clear to the court, in reading your Will, that your intention was just that in order to avoid litigation over your estate.

© 2021 Make you Own Wills. All Rights Reserved.

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