In a recent estate litigation case, an Ontario court affirmed the principle whereby testators are free to dispose of their estate as they wish, after a daughter objected to being left out of her mother’s will entirely.

Mother Leaves Daughter Out of Will

The testator died in 2016 at the age of 86. She and her husband had two adopted children, a son and a daughter. The testator’s husband had pre-deceased her.

The testator’s 2011 will left everything to her son and nothing to the daughter.

The daughter applied to court, contesting the validity of the 2011 will on four grounds:

1)      the testator lacked the requisite testamentary capacity to execute the 2011 will;

2)      the son had unduly influenced the testator to execute the 2011 will;

3)      the testator did not have knowledge of, and approve of, the contents of the 2011 will; and

4)      the testator had executed a new will in 2014, thereby revoking the 2011 will.

Furthermore, the daughter raised the issue that the mother had a “moral obligation” to provide for her in the will.

The daughter sought to have the 2011 will declared invalid and to have the testator’s previous 1994 will, in which the son and daughter were provided for equally, declared valid. In the alternative, she sought to have the alleged 2014 will declared valid, under which the daughter was a limited beneficiary.

The son sought to have the 2011 will declared valid as the testator’s last will and testament.

Court Rejects Daughter’s Application

After reviewing the evidence, the court rejected the daughter’s main objections, finding that the testator: (1) had the requisite capacity to execute the 2011 will, (2) was not unduly influenced by the son in doing so, and (c) had knowledge of, and understood the contents of, the 2011 will.

Additionally, the court rejected the daughter’s claim relating to the alleged 2014 will because it was not presented into evidence and there was insufficient evidence to find that it existed.

The court then turned to the daughter’s pleadings that the mother had a moral obligation to provide for her in the will. To address the issue, the court referred to the Ontario Court of Appeal decision Spence v. BMO Trust Company. Decided in 2016, Spence affirmed the principle that a testator had “testamentary freedom” and is therefore free to distribute their property precisely as they wish. Citing Spence, the court set out the relevant passages as follows:

A testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle.  As this court emphasized …:

The freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law.

The Supreme Court has also recognized the importance of testamentary autonomy, holding that it should not be interfered with lightly, but only in so far as the law requires: .

The freedom to dispose of her property as a testator wishes has a simple but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator.

As such, the court gave effect to the testator’s testamentary freedom, rejected the daughter’s claims and declared the 2011 will valid.

Get Help

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.