Do testators have a moral obligation to include their adult children in their wills? Testamentary freedom has long been an established tenet of estates law throughout Canada, and yet, depending on where a testator lives, that freedom may be somewhat restrained. 

In the recent B.C. Supreme Court decision of Pascuzzi v Pascuzzi,  the court did vary the will of a man who left his entire estate to his new wife and made no provision for his adult daughter from a previous relationship.  Although his daughter was 32 at the time of his death and otherwise not dependent on her father for support, the B.C. legislation recognized her claim and her father’s parental duty: 

“… the legislation provides that if in the court’s opinion a will fails to make adequate provision for the proper maintenance and support of the testator’s – that is, the will maker’s – spouse or children, the court is empowered, in its discretion, to vary the will to make provisions that it considers adequate, just, and equitable in the circumstances.”¹ 

In Ontario, testamentary freedom is traditionally treated with greater deference (see Spence v. BMO Trust Company). Would-be beneficiaries are only able to challenge the distribution of an estate under a will on the basis of a dependant’s support claim if they can establish that they meet the definition of a dependant and the test under the Succession Law Reform Act (ss. 57 & 58). For the purposes of an application for support, a dependant is defined as a spouse, parent, child, or brother or sister of the deceased, to whom, immediately before death, the deceased was providing, or had a legal obligation to provide, support.  Notably, ‘support’ has been found to include financial, physical and moral support as set out in the case law.  If a court then finds that what was provided to the dependant (under a will or on intestacy) is insufficient, it may order such support as it considers adequate.  

In any case, it is important to understand the nuances between provinces when it comes to moral obligation claims and protecting an estate from challenges. If a client does wish to disinherit their adult children, it is important to have very clear, valid and rational reasons for the disinheritance.  Evidence or some other support may be crucial. Otherwise, testators and their beneficiaries may ultimately find that “testamentary autonomy must yield to what is adequate, just and equitable”² as far as a court is concerned.  

Suzana Popovic-Montag & Marie Kazmer

1 Para 110.

2 Para 112.