Testamentary freedom not absolute

Courts can, and do, adjust wills in egregious cases of disinheritance

Testamentary freedom – the freedom to dispose of your estate as you wish – is a longstanding principle in Canada and other common law jurisdictions, although each province and territory in Canada has its own governing legislation as well as its own developing caselaw.

In contrast, forced heirship is the governing principle in most of the world, including civil law jurisdictions. This regime dictates which family members are entitled to receive the assets of the deceased and in what proportions.

In this article, we’re taking a trip across Canada from B.C. to Ontario to Nova Scotia to highlight how testamentary freedom differs among the provinces and territories.

In British Columbia, the governing legislation for succession is the Wills, Estates and Succession Act. The legislation allows the court to adjust a person’s will if, in the court’s opinion, the will does not adequately provide for the person’s spouse or children. In British Columbia, the courts have continually held that a testator has a moral obligation to financially independent adult children.

In Ontario, the governing legislation for succession is the Succession Law Reform Act (SLRA). Under the SLRA, the deceased is required to make adequate provision for his or her dependants, which includes a spouse, parent, child, or sibling of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. The SLRA does not contemplate financially independent adult children.

The principle of testamentary freedom was strongly endorsed by the Ontario Court of Appeal in 2016 in Spence v BMO Trust Company. At the lower court, the Ontario Superior Court struck the entire will of a testator, who was survived by two adult daughters, where one daughter was entirely left out of the distribution of the estate. The testator’s will stated he had excluded his daughter because she had not communicated with him for years.

However, based on affidavit evidence, the lower court concluded that the real reason for the daughter’s exclusion was racially motivated. The entire will was struck down on the basis it offended public policy.

The Ontario Court of Appeal reversed the decision. The court refused to interfere with the deceased’s decision to leave his estate to one daughter and her children to the exclusion of his other daughter and her child, thereby confirming that testators do not have any obligation to benefit persons who they have no legal obligation to support or otherwise benefit (i.e., financially independent adult children).

The Nova Scotia succession legislation, the Testator’s Family Maintenance Act (TFMA), allows dependants to bring a claim to vary a will against a deceased person’s estate. The definition of dependants includes a spouse and children.

In the 2019 Nova Scotia case, Lawen Estate v Nova Scotia (Attorney General), the Court held that testamentary freedom is a decision of fundamental personal choice, which is protected under the Canadian Charter of Rights and Freedoms. The Court “read down” the relevant provision in the TFMA so that non-dependent adult children were excluded from the definition of “dependant.”

The Nova Scotia Court of Appeal recently overturned the trial decision and dismissed the case based on evidentiary issues for a public interest standing case, and not on its merits. Leave to appeal to the Supreme Court of Canada was dismissed.

The Nova Scotia case leaves the door open for a future constitutional challenge with respect to the principle of testamentary freedom as it was dismissed based on evidentiary issues. Although the more limited definition of “dependant” in Ontario would likely preclude a constitutional challenge of a similar nature, it would be interesting to see how a challenge in British Columbia, Nova Scotia, or a province or territory that allows more authority to a court to vary a will would play out, and what impact this may have across the country.

Marly Peikes is a partner at O’Sullivan Estate Lawyers. Her practice includes all aspects of estate and trust planning, estate administration and estate dispute resolution. Marly focuses on assisting clients in organizing their financial affairs during their lifetime through creative estate planning strategies which balance each client’s unique needs with corresponding estate administration tax and income tax considerations, all while ensuring that each client’s objectives are achieved and optimized. This article originally appeared in the O’Sullivan Estate Lawyers blog. Used with permission.

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