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Lerners LLP: David Waites

Who can you give your Estate to?

Lerners LLP

By David Waites

Some people will ask: “Can I give away my estate to whomever I want? The answer is not as simple as they may want.

The right of someone to be free to give away their estate as they wish is deeply entrenched in our common law in Ontario. It is not an absolute right. There are some limits to your testamentary freedom.

If wishes as set out in a will are contrary to public policy, they may not be upheld.

Several recent decisions by the courts have considered public policy and provided insight into when the Court will interfere with the testamentary freedom. In one case, the Court held that a gift in a will to a charity which supported white supremacy was void as being against public policy. In another case, however, the Court said that a father could leave his one daughter out of the will, and even though she argued he did so because he was racist, the will was held to be valid on appeal with the Court confirming the sanctity of testamentary freedom. The distinction? In the case of the charity supporting white supremacy, the gift was to a public or quasi-public body (the charity), which would be governed by the Charter of Rights and Freedoms and human rights legislation. The Court held that supporting white supremacy was, amongst other things, contrary to human rights legislation and contrary to public policy. In the case of disinherited daughter, the gift was between “private” individuals (between father and daughter) and therefore the Charter or human rights legislation did not apply such that the father was free to give away his assets as he wished (even if it was based on racism).

One lesson from these cases is that individuals who want their estate given away as they wish should be sure to review their wills with a lawyer to ensure that the gifts set out in the will are unlikely to be set aside by the Court.

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