Can a widower claim a share of his late wife’s inheritance from her father’s estate?

Q. I am a widower. When my father in law died last year the will stipulated that the inheritance would be divided equally between his living children and my own children, both in their early 20s. Money for my children will go into a trust to be paid out in gradual installments and looked after by the executor. Do I not have any rights to the inheritance that would have gone to my wife if she had been alive? Or did I have to be specifically mentioned in the will to receive anything? In either case, is it worth it to sue for a share of the inheritance before it is distributed later this year? —Max in Ontario

FP Answers: Dear Max, you ask: “What did I inherit from my father-in-law’s estate?” Assuming your father-in-law lived in the same jurisdiction as you, there may be no other conflicting jurisdiction laws to consider. You need a lawyer to read your father-in-law’s last will to determine what your rights are. The division date for distribution set up in his will defines when any inheritance for you or your children may be distributed. The wording in the will may be ambiguous, or the intention was that your gift was transferred to your children.

Inheritance dates may be defined in the will. The will may require that your wife must be alive at the time the estate is divided. There may be alternate beneficiaries if his daughter did not survive her father and this may or may not include you specifically. No division or distribution can usually take place until the youngest beneficiary reaches the age specified in the will. The trust made in your father-in-law’s will may have given you some rights.

The only way to confirm if you have any rights is for an estate lawyer to review the last will and the laws where your father-in-law resided at the time of his death. If your father-in-law’s will was certified by a court, it is a public document, and you can obtain access to it.

You did not mention if your father-in-law had made any enforceable promises to you. Was he supporting your family directly or indirectly? Had he any legal or moral obligations to you or your children that you may choose to enforce? Your own lawyer can advise you.

You may speak to your father-in-law’s trustees who are investing trust funds for your children. The estate trustees may have discretion to advance funds for your children’s needs. You may have the right to request advances from your children’s trusts for their needs.

If your children are not minors, the trustee may refuse to share any information with you. This would require your adult children to make direct requests for information or advances.

Unless you are named specifically in the will as a beneficiary, you may not have inheritance rights if there is a will. You could have rights under a provincial statute, for which you require legal advice. If you have inheritance rights, you would receive notice that the estate executors are applying for an estate certificate.

There are prescribed deadlines for taking any legal action. You should obtain legal advice before you start any legal remedies, which will depend on the value of the estate. You can be responsible for all legal costs if you start legal proceedings without merit.

This information is no substitute for legal or tax advice. Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law.

Do you have a question for FP Answers? Email wealth@postmedia.com.