So you’re thinking about disinheriting your child. Contrary to what you and others might think, this does not make you a bad parent. Unlike in forced heirship regimes, children in Ontario have no legal right to inherit anything from their parents’ estates. You may disagree with their lifestyle, politics, finances, or simply desire to see them make their own way in the world without depending on you for support. Your testamentary freedom grants you the right to dispose of your estate however you choose. However, this right remains subject to various limitations from the courts and legislatures which might impact your ability to choose your beneficiaries. Here are several things you should keep in mind when considering whether to disinherit your child.

Dependant Support Provisions

A major limitation to testamentary freedom are dependant support provisions, which allow courts to interfere with your Will if you have not adequately provided for your dependants.

Under section 58(1) of Ontario’s Succession Law Reform Act (SLRA), if a deceased has not made adequate provisions for the proper support of their dependants, the court can order that adequate provisions be paid out of the estate. Section 57(1) of the SLRAdefines a “dependant” as:

(a) the spouse of the deceased,

(b) a parent of the deceased,

(c) a child of the deceased, or

(d) a brother or sister of the deceased,

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

A “child” under the SLRAincludes a grandchild and “a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.” This means that a “child” could include biological children, adopted children, and even stepchildren, in some circumstances.

As such, per the SLRA, you cannot effectively disinherit any minor children, children you were supporting, or children you were legally obligated to support. If you fail to adequately provide for them, then your estate could be subject to a dependant support claim. But what about adult children who are not financially dependent on you?

Adult Children

Whether you can disinherit your adult child is more complicated. It is also highly dependent on what jurisdiction you live in as different provinces have different rules.

While all provinces recognize support claims based on financial need, the Supreme Court of Canada also recognized the validity of moral claims which a child might have to their parents’ estate.[1] These principles were accepted to apply in Ontario in Cummings v Cummingsas factors to be considered when determining the amount and duration of support under section 62(1) of the SLRA.[2]However, there is no moral obligation in Ontario to include your child in your Will.[3]

In Ontario, the definition of “dependants” is limited by financial need and courts can only consider moral obligations when determining how much support to award. There is no statutory entitlement for adult children to seek dependant support against their parent’s estate in Ontario.[4] In contrast, in British Columbia, courts can interfere and order support that is “adequate, just and equitable in the circumstances” for the testator’s spouse and children of any age.[5] This leaves Wills in British Columbia significantly more vulnerable to challenges from disappointed children. For instance, in Pascuzzi v Pascuzzi, the court found that the testator had a moral obligation to provide for his 32-year old daughter and awarded her 30% of his $1.8 million estate.[6]

In practice, disinheriting your non-dependent adult child in Ontario has rarely, if ever, been interfered with by courts, as discussed in a previous blog. Courts have even upheld Wills which excluded children for discriminatory reasons. In Spence v BMO Trust Company[7], a father excluded his daughter from his Will after she had a child with a man of a different race. The Court found no discrimination on the Will itself and was unable to admit outside evidence of the testator’s discrimination. The court noted that:

Absent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects a testator’s right to unconditionally dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds.[8]

As adult children are not able to make a claim for support against their parent’s estate in Ontario, the next step for disinherited children would be to challenge the validity of the Will itself.

What Can I Do To Prevent My Will from Being Challenged?

Although applicants must meet a minimum evidentiary threshold to successfully launch a Will challenge, there are several things you can do to help prevent a Will challenge or decrease the likelihood of its success:

  • Document your reasons for excluding your child. This will show that the exclusion of your child is a reflection of your testamentary intentions and not a result of external influences or incapacity.
  • Ensure that your Will is properly executed and meets the formal requirements in Ontario. A Will must be in writing, signed by the testator (or someone else at the testator’s direction), and signed by two witnesses.
  • Document your mental capacity when making your Will. There are several ways you can do this.
    • You should make a Will with an experienced and reputable estate lawyer. They will ask questions to gauge your mental capacity and whether you are making decisions free from influence. They can also take notes during consultations, which can be used as evidence of your capacity.
    • Get a capacity assessment. Ontario’s Capacity Assessment Office provides training and certification to capacity assessors, who can conduct a capacity assessment and show that you have the requisite testamentary capacity.
  • Meet with your lawyer alone. If you come to the consultation with your child or another beneficiary under the Will, this could lead to challenges based on undue influence. When you are concerned that your Will may be contested, it is best to avoid even the appearance of impropriety.
  • Update your Will. By updating your Will and continuing to exclude your child, you will show that the decision to not include them was not made on a whim and remains a true reflection of your testamentary intentions.
  • Be honest with your child. While you may want to avoid an unpleasant and awkward conversation, it is best to be open about your plans to your children. Some children commence a Will challenge simply because they were surprised by their exclusion and did not understand their parent’s decision. This ensures that your child is not financially planning around an inheritance they will not receive and is not blind-sided by the news after your passing.

Derfel Estate Law in Toronto Represents Clients in Contentious Estate Litigation or Estate Planning Matters

These issues demonstrate the importance of consulting with a lawyer when preparing your Will. While it may be tempting to save costs by creating a Will without the assistance of a professional, it can result in serious consequences for your beneficiaries and estate.

The experienced estate lawyers at Derfel Estate Law in Toronto act on behalf of executors to defend various estate litigation matters, including Will challenges and capacity concerns. To learn how we can assist you with estate planning or your estate litigation dispute, call our office at 416-847-3850 or contact us online.

This blog was co-authored by Law Student, Leslie Haddock.

[1] Tataryn v Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 SCR 807.

[2] Cummings v Cummings, 2004 CanLII 9339 (ON CA), [2004] CarswellOnt 99 at paras 40and 46.

[3] For example, see Stewart v Stewart, 2021 ONSC 1222 at paras 125-127.

[4] For example, see Shafman v Shafman, 2023 ONSC 1391 at para 1.

[5] Wills, Estates and Succession Act, [SBC 2009] ch 13, s 60.

[6] Pascuzzi v Pascuzzi, 2022 BCSC 907, aff’d 2023 BCCA 131.

[7] Spence v BMO Trust Company, 2016 ONCA 196.

[8] Ibidat para 75.