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  • Charles Baker

What Options Does One Have if He or She has been Left out of a Last Will and Testament?

Perhaps there is nothing worse than being a child who has been left out of a parent’s Will. As a general rule a parent who is a testator does have the testamentary freedom to decide who gets his or her assets upon death. Nonetheless, this so-called right to testamentary freedom is not absolute. It is not so because during the parent’s lifetime he or she may have become financially responsible to the child, or even some other person, at the time of death. The law of Ontario, and specifically by virtue of the Family Law Act and the Succession Law Reform Act, recognizes that even upon death a person may still owe financial responsibilities to spouses and children. In other words, the legislature has decided that this obligation supersedes the right of testamentary freedom.

This is so because the legislature says that it is not its responsibility to assume the obligations of a spouse or parent who has failed to comply with his or her legal and even moral obligations. For confirmation of this emerging line of thinking one need only review some of the more recent and noteworthy cases of the courts.

To begin, a review of the decision of the Supreme Court of Canada of a case originating in British Columbia known as Tataryn v. Tataryn is instructive. In that case the top court was asked to decide whether the testator had a legally enforceable moral duty to provide for the proper support of his surviving wife and children. Here the court found that the testator’s freedom to dispose of his assets must be secondary to the entitlements of his surviving wife and children to a proper level of support from his estate. It should be noted that this was a decision based on a statute of British Columbia, which differs from its composite in Ontario.

However, the Ontario Court of Appeal in the decision of Cummings v. Cummings did determine that the law of this Province also recognizes a moral claim against an estate, and not just one based on the financial needs of the claimant. Critically, the appeal judge wrote that: “In my view, these questions have been resolved by the decision of the Supreme Court of Canada in Tataryn v. Tataryn.” The judge went on to say: “I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act…”

The cases that have followed have not all been consistent, and some appear to have even undercut this argument of a testator’s moral duty towards his or her dependents. For example, see the decision of Verch Estate v. Weckwerth.

Most recently Justice Gilmore, a Judge of the Superior Court in Newmarket, refused to enforce the Will of a man because she found his testamentary wishes to be racist. In that case, the testator had disinherited his daughter who gave birth to a child where the father was a different colour than the testator.

One should not but left with the impression that it is at all easy to overrule the testamentary freedom of a parent or a spouse beyond what the Family Law Act explicitly allows. However, given the right set of facts a disinherited child, or even another dependent, may now have a measure of redress he or she did not have just 10 years ago.

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