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 death[1]. 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 Company[2]. 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 choice[3]. 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 wishes[4].
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.
– Marly Peikes
[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 comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.