A recent decision from the Ontario Court of Appeal reminds us of parents’ testamentary freedom.
In Verch Estate v. Weckwerth, the appellants were adult children of the deceased. The deceased left his estate to his daughter-in-law, an estranged spouse of one appellant. The appellants argued that the deceased had a “moral obligation” to provide for them in his will because - well, they were his children.
In dismissing the appeal, the Court noted that a capable, autonomous testator, who has properly executed his or her will, is generally free to leave his or her estate to whomever he or she chooses –including to the exclusion of some or all independent children.
Of course, freedom isn’t absolute.
Ontario law requires that you do actually have to provide for certain people. The Succession Law Reform Act allows dependents of a deceased to claim against the estate for support if they are not adequately provided for in the Will. Dependents include spouses (married or, possibly, “common-law’), parents, siblings and, of course, children (including grandchildren) who the deceased (1) was providing support or (2) was under a legal obligation to provide support immediate before death.
Dependent children may also include children who are over eighteen but who (unlike the kids in Verch) attend post-secondary school or who are incapable or disabled to the extent that they were supported by the deceased in adulthood.
Under a successful support claim, the estate would be liable to pay the dependent an amount(s) determined based on the claim specific facts. As a result, less (if any) is then available to distribute to named beneficiaries.
Another consideration is that a will excluding someone or leaving less than expected to someone (whether a child of a deceased or not) may be open to challenge. Grounds for challenge include: that the testator lacked capacity and failed to understand or appreciate the full scope and consequences of his assets, liabilities and the document itself; that the testator was unduly influenced by someone who persuaded or manipulated her into executing a will that was contrary to actual intentions; or that will was not properly executed or witnessed or otherwise failed to comply with the laws governing the creation of valid wills.
If a will challenge is successful (not an easy feat) it could result in an alternative distribution or a revocation of the will.
A lawyer acting solely on your behalf will canvass these potential issues with you and will be able to careful document your instructions, state of mind and other considerations including your reasons behind exclusions.
Adam Kowalsky is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca.