The family landscape is changing with increases in blended
families, matrimonial breakdown and cohabiting. This may mean
shifting family dynamics and relationships, which will likely
translate to more complex estate planning.
A parent may not want to pass his or her property to a child for a
number of reasons. There are circumstances where it may be
reasonable to exclude a child from inheriting, but a lack of proper
planning can lead to costly disputes and strains on family
relationships.
In Canada, each Province and Territory has its own governing estate
legislation and testamentary freedom is a longstanding principle.
In Ontario, individuals have the autonomy to pass property on death
as they please, subject to certain legal limitations. With respect
to children and certain other family members, under the Succession
Law Reform Act, the deceased is required to make adequate provision
for his or her dependants, which is defined as 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 death1. This does not
contemplate financially independent adult children.
The principle of testamentary freedom was endorsed by the Ontario
Court of Appeal in 2016 in Spence v BMO Trust Company2.
In this case, the deceased's reasons for disinheriting a child
were clearly stated in the Will; he specifically left nothing to
one of his daughters with whom he had not communicated for several
years. 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.
Interestingly, the Nova Scotia Supreme Court recently held that
testamentary freedom is a constitutionally protected right. In
Lawen Estate v Nova Scotia (Attorney General) the Court stated that
testamentary freedom is a fundamental personal choice3.
In contrast, in British Columbia, the courts have held that a
testator has a moral obligation to independent adult children and
its legislation expressly allows the courts to alter a person's
Will if he or she failed to fulfill this obligation regardless of
his or her wishes4.
Whatever the reason is for excluding a child from a Will, it is
important that this rationale is made clear to the family and the
excluded child. That way, this disappointed heir would be hard
pressed to claim that the exclusion was an error or omission and as
well setting out reasons is generally helpful in gaining acceptance
of the terms of the Will. This can be done by leaving a letter or
memorandum with your Will explaining your rationale and intention
behind excluding an obvious potential heir. This will show that you
took the time to consider the potential heir and to make a decision
with forethought and not on a whim or in error.
A letter or memorandum gives you an opportunity to explain, for
example, that you have been estranged from your child for a long
period of time or that you bought one child a home and that you did
not give your other children substantial gifts during your
lifetime. This letter or memorandum can speak for you after your
passing when you are not able to otherwise explain your
decisions.
Even with proper planning, there is still the prospect of
litigation from an excluded heir, and it is important to consider
the strains that this might cause on your family, including your
other children, after your passing in making the decision to
exclude a child.
Family relationships are difficult and complex. It is important to
seek legal advice on how to express your testamentary wishes and
navigate these challenging situations.
Footnotes
1 Succession Law Reform Act, RSO 1990, c S 26.
2 Spence v BMO Trust Company, 2016 OBCA 196.
3 Lawen Estate v Nova Scotia (Attorney General), 2019 NSSC 162.
4 Wills, Estates and Succession Act, SBC 2009, c 13.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
