This is a complicated case. In December 2009, my father passed away from a heart attack. My mother and I were not on good terms (hated each other was pretty much a good term for it). My mother had verbally, emotionally and financially abused me for near 15 years of my childhood and at least 10 years of my adulthood before I got married and thus, escaped her abusive clutches.
When my father passed away, she took control of the finances, assumed executorship, told me verbally that I was “written out of the will” that she wasn’t going to give me anything because my father “had wanted it that way”. I was too emotionally distraught (and depressed) over my father’s death to care at that time. I have never seen letters of probate nor have been able to see the contents of the will (if there was any). I know that there is a 6 month limit to bring a claim against the Estate under the Wills Variance Act (this has long since passed). This has left me with no recourse other than finding out if the Will has been adhered to or whether probate fraud has been committed. I just assumed that she knew everything. For all I know now, he could have died intestate, in which the spouse can only take control of the first $65,000 of the estate and then the remainder is to be split 50/50 between the spouse and any surviving children (whether adult or minor).
My father loved his grandchildren, and spending time with them was the highlight of his life. He had verbally mentioned to his spouse that his funds were to be split and held in trust between his grandchildren but whether that was ever legally put into effect was never indicated.
Now the only reason that I am concerned now is that my mother has complete and utter control of my father’s estate.
a) She holds my grandfather’s estate (property), and has just sold it with the proceeds to be split between my two uncles and herself as agreed upon in my grandfather’s Will. My father’s credit paid for a consolidation loan in order to make improvements to my grandfather’s estate of which my family is getting no benefit. My father paid for the taxes to the property while the property was being held as well as used his credit as well as his income from working at his day employment to make improvements to my grandfather’s property. Now at the property’s disbursement, my uncles step in and take advantage of my father’s life work and benefit off the improved property.
b) There is a $500,000 capital gains tax on the property since it improved from the time that she held it first, to the time that the property was sold. The property was worth in the neighbourhood of $35,000 in 1979 when the surviving spouse of my grandfather (my maternal grandmother) passed away. The house just sold recently, in the neighbourhood of $1.6 million (I do not know the actual sale price as it was never disclosed to me). The estimated capital gains tax is almost $385,000; the probate taxes will be probably in around the $115,000 mark. My mother at this point is trying to say that if the capital gains tax is not paid off, that CRA can come after me. Fortunately for me, I have not signed anything to the effect that I am going to be on the title or anything for that matter. My mother is completely 100% on the hook for this. And I do not benefit from the property and thus I do not intend to pay a single dime from my pocket and have not stated that I will. In fact, I am of the opinion that I should make a formal statement that I will not pay a single dime out of my pocket as it is not my debt responsibility. However, out of spite against me she may give the property to my uncles and take on the tax burden herself, thereby eliminating what is left of my father’s legacy (his inheritance to his grandchildren).
3) I am not financially able to carry the tax burden when she passes away and I will have to sell one of her two properties (a half-duplex in Surrey, which we reside in and a apartment she bought with the proceeds (after split) in Surrey) in order to meet the capital gains tax on the half-duplex. Since I am not on her Will (she plans to put the properties in a “real property held in trust”, I will not be able to have the capacity to take title of the duplex and apartment upon her death and sell the apartment to be able to meet the capital gains tax. We will be financially hamstrung to meet the CRA’s capital gains requirements and may end up having to declare bankruptcy or just disclaim the inheritance. I don’t believe that I even have the option of disclaiming the inheritance because of the “property held in trust”. I have to take the inheritance. If my mother appoints a trustee other than myself, I just don’t want the trustee coming at me and telling me to pay the capital gains tax because I am the son of the deceased.
I don’t even know what I can do to protect myself financially. We’re in an unstable, financial situation ourselves. I am unemployed due to a severe back injury (degenerative arthritis) from slipping on my grandfather’s property back steps back in 2006 (the statute of limitations for personal injury is long since up), so currently we are living off Canada Child Tax Benefit, UCCB and my wife’s part-time employment income. I am trying to do what I can to establish a photography business with the skills that I have but if my mother’s Will gets forced onto me, I will have a tax burden that will end up destroying me financially.
What I would like to know is:
a) Did my mother commit probate fraud in not disclosing the contents of my father’s Will to me as his son if he had a Will? Did she commit probate fraud in that she took control of 100% of her husband’s assets in contravention to the BC Wills Act if he died intestate? Even if I am written out of the Will, do I have the right as his biological son to see the Will.
b) What can I do to protect myself from potential financially damaging clauses in the Will? What options do I have?
I am not in this to greedily go after my mother’s money. I just want to know if what she did was a criminal offence. I am in this to protect my own family from any potential damages.
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