Winnipeg Free Press - PRINT EDITION

Trust in wills to make life better for loved ones

  • Print

Joan Brown had one daughter. The daughter led a troubled life. She had a drug problem. She was prone to depression. She developed health problems. She was unable to work and became dependent on the Ontario government for income support.

It was a happy day when her daughter had children of her own -- three girls. They were Joan's only grandchildren. It was a sad day when the grandchildren were apprehended by government child-welfare workers and put into a foster home.

Joan became estranged from her daughter, but did not stop caring for her.

Joan wrote her will in 1997 when she was 72 years old. She was going to leave an estate of roughly $700,000 and it was important the will was done right. If she gave the money directly to her daughter, it would create trouble.

First, there was the drug addiction to worry about. The money would give her daughter unrestricted access to a steady flow of drugs. No good could come of that. Second, the inheritance would cut off the daughter's government support.

Then there were the three granddaughters to worry about. One of them, named Ashley, was good in school. Joan was worried her daughter would squander the money without sharing it. Her daughter's life was a train wreck -- Ashley had the chance for something better.

The will set up a special trust. The $700,000 was placed under the control of a family friend, who was appointed under the will as the trustee. He was given the power to spend the money on the daughter and on the granddaughters in whatever way would do them the most good.

Joan died exactly two months after she signed her will and it was put to probate. Over the eight years that followed, the trustee parcelled out the money in dribs and drabs in a heartfelt effort to make everyone's life better.

Ashley was given a total of $86,000 while she successfully pursued a university degree. Joan would have been delighted by that. Her daughter was not delighted. The trustee gave her a paltry $5,000 in total over the same eight-year period.

She hired a lawyer and tried to overturn her mother's will. If she succeeded, the $500,000 left in the trust would belong to her.

There were two ways to attack the trust. First, was a method called "trust busting." The court has the power to collapse a trust and give out the money, but only where it is in the best interests of the beneficiaries to do so. The daughter could not persuade a court on that point. The judge who heard the case described Joan's will as "sensible, sound and fair."

Second, she could try to attack the will. If the will was invalid, then the trust would be invalid, too. She would get the whole estate. The second method seemed more likely, but her case was thrown out on a preliminary motion. Once a probate order has been granted, courts have discretion to refuse a request to reopen things. It was delay that killed the daughter's case. If the attack had been immediate, the court might have allowed it to go to trial.

What lesson do we learn? Ultimately, it is up to each of us to decide how to best pass our wealth on to our family. That means looking at the whole picture. Sometimes it is not as simple as cutting up the estate like a piece of pie and giving it out. An inheritance can hurt some beneficiaries -- Joan's daughter was a prime example. An inheritance can also make a world of difference in the life of someone positioned to benefit from it -- think of Ashley.

None of us wants to look down from heaven to see a court battle, but all of us want the best for the people we love and leave behind as heirs.

Joan's story is real. The details were taken from the judgment published by the court. Names have been changed to protect the family from further embarrassment.

John E. S. Poyser is a lawyer with the Wealth and Estate Law Group. Contact him at 947-6801 or email

Republished from the Winnipeg Free Press print edition April 20, 2011 B6

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes


  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.


Make text: Larger | Smaller


Andrew Ladd talks about his injury

View more like this

Photo Store Gallery

  • Susan and Gary Harrisonwalk their dog Emma on a peaceful foggy morning in Assiniboine Park – Standup photo– November 27, 2011   (JOE BRYKSA / WINNIPEG FREE PRESS)
  • Challenges of Life- Goose Goslings jump over railway tracks to catch up to their parents at the Canadian Pacific Railway terminalon Keewatin St in Winnipeg Thursday morning. The young goslings seem to normally hatch in the truck yard a few weeks before others in town- Standup photo- ( Day 4 of Bryksa’s 30 day goose project) - Apr 30, 2012   (JOE BRYKSA / WINNIPEG FREE PRESS)

View More Gallery Photos


Are you concerned about the number of homicides so far this year?

View Results

Ads by Google