Wills that involve children, particularly in blended families or where unequal treatment is intended, continue to account for a significant share of estate litigation. While a testator is generally free to dispose of their estate as they choose, Ontario courts regularly examine whether the will, and the circumstances in which it was prepared, can withstand scrutiny after death.
From a drafting perspective, child‑proofing a will is not about predicting every possible dispute. It is about ensuring that both the document and the solicitor’s file can be defended if challenged years later.
Definitions Matter
Problems often begin with language that appears straightforward at the time of drafting. Terms such as children, issue, or descendants can become contentious where the testator has children from multiple relationships, step‑children, or strained family ties.
Ontario courts interpret wills based on the language actually used, not on intentions that were never expressed. As the Court of Appeal confirmed in Dice v. Dice Estate, interpretation turns on the words chosen, read as a whole. Where the drafting is unclear, courts are more likely to conclude that a mistake was made than that an exclusion was intended. If a child is to be excluded, addressing that decision directly is usually the safer course.
Unequal Treatment
Unequal treatment among children is often the starting point for allegations of undue influence, lack of capacity, or suspicious circumstances. Although unequal treatment alone does not invalidate a will, it may increase the evidentiary burden on those seeking to uphold it.
In that context, the drafting solicitor’s file often becomes central. Notes that clearly record the testator’s instructions, their understanding of the consequences, and the reasons for their decisions can be decisive. The absence of such records can leave the will vulnerable.
Minor and Vulnerable Beneficiaries
Where minor children are beneficiaries, drafting deficiencies tend to surface quickly. Vague trustee discretion, unclear distribution timelines, or incomplete trust provisions frequently lead to court applications for directions or ongoing supervision.
Similar issues arise with vulnerable beneficiaries. An outright gift, even where well‑intentioned, can jeopardize government benefits or expose funds to misuse. Ontario courts have repeatedly emphasized that rectification is not available to correct a testator’s misunderstanding of consequences. As reaffirmed in Gorgi v. Ihnatowych, rectification is aimed at correcting drafting errors, not planning failures.
Trust provisions in these circumstances should be carefully structured and supported by a clear documentary record.
Blended Families
Blended families remain a common source of will challenges and dependant support claims. Ambiguity in how spousal interests are balanced against children’s entitlements often leads directly to litigation. Drafting should address these competing interests expressly. Reliance on informal understandings or assumptions about fairness rarely withstands judicial scrutiny, particularly where adult children are involved.
Process as Evidence
In many cases, the focus of a will challenge shifts quickly from the wording of the document to the circumstances in which it was made. Courts routinely examine the drafting solicitor’s independence, their assessment of capacity, and the degree of control exercised over the process.
Child‑proofing a will is not about defensive drafting, but about disciplined practice, where clear language, deliberate structure, and careful file‑keeping can reduce disputes and protect testamentary intention.
Thank you for reading and have a great day!