Testamentary Freedom Isn’t Necessarily So
A survey conducted by the Angus Reid Institute at the end of 2017 found that less than half of Canadian adults had a will. Furthermore, of those who do, only about 25% said the document was up to date.
Just Because You Wrote a Will…
There is a common law principle that the testator – the person who makes a will – has almost complete freedom to decide how they want their estate to be distributed. Ontario is a province with a fairly strong legal tradition in favour of testamentary freedom.
However, there are exceptions. For example, an Ontario man may write up a will in which he cuts out his wife. That is not going to work out so well. A testator has a duty to make adequate provisions for certain dependents, including one’s spouse.
Others who have a legitimate opportunity to challenge a will include minor children, or adult children who, for reasons of disability, may be financially dependent on the testator.
British Columbia is a province with a century-long legal tradition of moral obligation in will-making that weakens testamentary freedom considerably. In addition to B.C., Nova Scotia, and Newfoundland and Labrador have similar laws in place.
Examples of Will Provisions Being Disallowed
The above paragraphs suggest that testamentary freedom is an almost unfettered right, especially in Ontario. Nevertheless, there are a few restrictions even in the most liberal of provincial jurisdictions. A helpful article by Keith Masterman and Asha Sivarajah highlights three restrictions.
Failure to adequately provide for a dependent
Depending on where you live, a dependent can include different categories of people. Ontario, considered one of the more liberal provinces for testamentary freedom, defines a dependent as the deceased’s spouse, parent, child, or sibling for whom the deceased provided support or was under a legal obligation to support.
The key words in B.C.’s more interventionist Wills, Estates and Succession Act requires the testator to provide “adequate, just, and equitable” provisions for their spouse, common-law spouse, or children.
The beneficiary of a will who murdered the testator will not be able to inherit. Other beneficiaries who may find that their inheritance is voided by the court include members of terrorist groups and those who have committed severe criminal offences.
Provisions contrary to public policy
Beneficiaries who are disinherited based on certain racial (racist) or religious perspectives may find that they have a case to make. On the other side, beneficiaries who stand against certain public policies may find that they will be unable to inherit. In one example, a white supremacist group was named as a beneficiary but the gift in the will was overturned by the court. In another case, which was not upheld, a woman claimed that her Jamaican-born father disinherited her after she became pregnant by a white man. She argued that this decision was racist and offended public policy. However, she was unable to prove her case to the court’s satisfaction.
Two Cases from B.C.
The Estate of Ronald Poole
Ronald Poole had virtually no involvement in the lives of his twin daughters, except for a brief period after their mother died. He left his entire $900,000 estate to two of his old friends. He had even instructed his executors to “strenuously litigate” any challenge from the twins even if the legal effort meant that the estate would be exhausted.
The judge, however, concluded that Poole owed a moral obligation to provide for his children in his will. The rationale Poole expressed in his will was “not based on what a reasonable testator judged by contemporary community standards would or should have done.” The twins were granted 70 percent of the estate, while the two friends of the deceased received the balance.
The Four Litt Sisters
Nahar and Nihal Litt, the parents of four daughters and two sons, willed 93 percent of their $9 million estate to their two sons, leaving the balance to their four daughters.
The sisters were the main caregivers for their parents as they aged and also helped to build their parents’ wealth, having worked on the family farms from childhood. They decided to challenge the provisions of the will, arguing that the parents’ decisions were based on traditional Indian values that should not apply.
There is a significant South Asian immigrant population in B.C., many of whom, unsurprisingly, adhere to the values of their homeland. Part of the reason for the decision to pursue the court case was to establish a precedent for other South Asian women in similar circumstances. Eventually, the judge determined that the four sisters should share 60 percent of the estate, while the two brothers shared the remaining 40 percent.
The issue of varying a will through the courts is not something to take lightly, even if a person lives in a jurisdiction that does not have the provisions that are in B.C. law. Moral obligations may still exist. One lawyer observed that in Ontario, the “moral obligation claim is pursued much more than it ever was, and these cases are settled.” In other words, cases may not always go to court in Ontario, but the lawyers for the plaintiff and defendant often settle out of court because the obligation is recognized.
I find the realm of estates and wills to be fascinating, and often cautionary. If you are reviewing your will, no matter the jurisdiction in Canada, it is wise to consider – and document – carefully the foundation for your decisions to either exclude or disproportionately favour an heir or heirs.
This is the 111th blog post for Russ Writes.
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Disclaimer: This blog post is intended for general information and discussion purposes only. It should not be relied upon for investment, insurance, tax, or legal decisions.