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One of the primary reasons someone might make a will is because they want to be in control of what happens to their estate when they die. This can be interpreted as making sure that specific people are included in a will, but on the opposite side of the coin, it can also mean that others are specifically omitted from a will. A question that occasionally makes its way to the courts is whether a parent has any sort of obligation to include their children in their wills. While courts have ruled on the idea of “testamentary freedom,” which means people should be free to distribute their estate as they see fit, questions about whether a parent have an obligation to leave something to their children still come up from time to time. A recent decision from the Ontario Superior Court of Justice is one such example.

Mother leaves entire estate to one of her children

The parties to the dispute were the two adopted children of the deceased. The deceased’s son, “RS” was left everything in the deceased’s 2011 will. Her daughter, “SS” contested the will on four grounds, stating:

1) The Testator lacked the requisite testamentary capacity to execute the 2011 Will;

2) The Plaintiff 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 executed a new will in 2014, thereby revoking the 2011 Will.

The idea of a moral obligation is not cemented in any of these grounds, though after determining that the will was valid and could not be overturned on any of the grounds cited by SS, the court took a moment to comment on the idea of moral obligations, as it was something commented on by SS.

The court re-establishes testamentary freedom

The court said it would be worth briefly addressing the idea of a moral obligation, as it was something SS mentioned over the course of the trial, particularly around the idea that the mother wished to proactively exclude her from the will.

The court quoted a 1990 Ontario Court of Appeal decision in which it was held that, “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.”

In addition, the Supreme Court of Canada ruled on the subject in 1994, writing,

“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.”

It seems that even though it may feel like there should be a moral obligation for a parent to ensure all of their children receive a piece of their estate, the law does not cement any real obligation.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.

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