It is generally thought that all Canadians, subject to the rights of spouses and dependants, have the right to distribute their property on death in any way that they see fit.  A recent case in British Columbia, however, demonstrates the concept of moral obligation, and how it limits a testator’s freedom to distribute their property.   

Pascuzzi v Pascuzzi 2022 BCSC 907

The plaintiff, in this case, was the daughter of the deceased and sought an order to vary her father’s will.  The last will of the deceased was executed in 1996 and was to create a trust to provide monthly support for the plaintiff until she reached 19 years of age.  Nothing else was left to her under his will.  When the deceased passed away in 2019, the plaintiff was 32 years old.  The plaintiff argued that her father had a moral obligation to adequately provide for her in his will. 

The court’s authority to impose a moral obligation on a testator is found in s. 60 of the province’s Wills, Estates and Succession Act.   This section allows the court to make an adequate, just and equitable provision for a testator’s spouse or children if the court finds that an adequate provision was not made in the last will.  The issue, in this case, was whether this provision could apply in the case of an adult child that was not a dependant of the deceased. 

Despite the plaintiff’s age, the court agreed that the deceased had a moral obligation to provide for her and found that 30% of the $1.8 million estate would be a just and adequate provision.

The Law in Ontario

In Ontario, courts have consistently upheld a testator’s freedom to distribute their property as they choose.  This was affirmed last year by the court in Stewart v Stewart, 2021 ONSC 1222.  Ontario’s Succession Law Reform Act does not contain any provisions that require adequate provisions to be made to a testator’s children.