Can a Beneficiary Be Removed From a Will After the Death?

A family member is named in the will, and someone else in the family believes that should not stand. Maybe they think the will-maker was not themselves, was pressured, or that the person does not deserve the gift. You want to know whether a beneficiary can be removed once the will-maker has died.

In short, there is no simple way to remove a beneficiary. This article explains the limited grounds that exist, what a trustee can and cannot do, and when to see a lawyer. Some specific rules, such as when a beneficiary loses a gift through their own conduct, depend on the facts and need legal advice.

What the estate trustee can and cannot do

An estate trustee is responsible for winding up the deceased's affairs, collecting assets, paying debts and taxes and carrying out the will's wishes in line with the law. A trustee has no power to rewrite the will because family members disagree. With a will, the estate is normally distributed as the will directs after assets are liquidated and funeral costs and debts are paid.

A person named in a will can decline to act as trustee. That is not the same as removing a beneficiary, but it can change who is running the estate.

Grounds that can affect a gift

A gift can be affected in different ways depending on the facts. Two grounds that can be raised are lack of capacity and undue influence.

• Capacity: the will-maker must understand the nature and effect of a will, recollect the nature and extent of their property, understand what they are giving, remember those they might be expected to benefit, and understand the claims of excluded persons. The person propounding a suspicious will bears the burden of proving capacity.
• Undue influence: once a presumption arises from a relationship where domination is possible, the person who received the gift must show it was the result of the transferor's full, free and informed thought. Independent qualified advice can rebut the presumption.

These challenges are fact-heavy and evidence-driven. Medical records, the lawyer's file and witness accounts often matter. Whether a challenge has a reasonable chance depends on the facts, and a lawyer can assess that. How any other ground might apply to your situation depends on the facts, so it is worth confirming with a lawyer before you rely on it.

What happens if a court sets aside a will

The outcome depends on what is set aside. Without a valid will, the Succession Law Reform Act sets who inherits, generally the spouse and closest next-of-kin, and a common-law spouse does not inherit under that Act. If an earlier will exists, the result may be different. A lawyer can explain which applies in your situation.

Process, notice and getting directions

A beneficiary cannot be quietly left out of the process. When applying for probate, the applicant must send or give the application to the estate beneficiaries before filing with the court. If any beneficiary is under 18, the Office of the Children's Lawyer must be served and may act for that child.

If you have a financial interest and are unsure how to bring a matter to court, Rule 75.06 lets a person who appears to have a financial interest in an estate apply for directions on the procedure. A person with a financial interest can also use Form 74P to ask to be notified of estate proceedings.

A trustee should also avoid shortcuts. Taking compensation in advance is allowed only on agreement of all persons with a vested or contingent interest, with court approval, or where the will provides, and otherwise risks liability for breach of trust.

Things outside the will

Not everything a person owned passes through the will. Life insurance goes to the named beneficiary, and if more than one is named, the insurer divides it as the policyholder assigned. A revocable beneficiary can be changed during the policyholder's life, but an irrevocable one needs written permission. Plan benefits from RRSPs, RRIFs and pensions can go to a designated person by a signed instrument or a will, and a designation in a will works only if it expressly relates to a plan.

A spouse also has a choice: an equalization payment under the Family Law Act instead of what the will gives, with the Election of Surviving Spouse form due no later than six months from the date of death.

What to do next

• Get a copy of the will and any earlier wills, and note the date each was signed.
• List your concerns and what evidence exists, such as medical records or the drafting lawyer's file.
• Check separate designations on insurance and registered plans.
• Note the six-month spousal election deadline if it applies.
• Speak with an estate litigation lawyer early, before the estate is distributed.

Frequently asked questions