Estates & Wills & Trusts

‘Complete autonomy’ essential when drafting a will: Horst

By Paul Russell, AdvocateDaily.com Contributor

A recent Nova Scotia Supreme Court decision upholds the legal principle that people can leave their estate to whomever they want, provided they are fulfilling their support obligations, says Toronto wills and estate lawyer Marlin Horst.

“This judgment reinforces that testamentary autonomy can only be limited by legislation that specifies who is eligible for financial assistance upon the testator’s death,” says Horst, a partner with Shibley Righton LLP.

Court documents show that a man who owned several residential income-producing properties in Halifax left $50,000 each to two of his three grown daughters, and the rest of his estate to his son.

The three daughters commenced an action pursuant to the Testators’ Family Maintenance Act (TFMA), alleging their father’s will failed to make adequate provisions for them. According to the judgment, in Nova Scotia “to be a ‘dependant’ within the meaning of the definition does not require actual dependency or need. One need only be a child, widow, or widower of the testator.”

In response, court documents show, the son brought an application seeking a declaration that the TFMA provisions allowing independent adults to seek support from an estate violated s. 7 of the Canadian Charter of Rights and Freedoms, which reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The judge ruled in his favour, saying that “A testamentary decision is a fundamental personal decision that is protected under s. 7.”

While this judgment is not really applicable to Ontario, since the two provinces have different rules around testamentary succession, Horst tells AdvocateDaily.com this case does provide a good summary of the case law in this area.

“In Ontario, a dependant is someone who is, or who should have been, supported in some way immediately prior to the testator’s death,” he says. “Under the Nova Scotia legislation, there is sort of a legal and a moral obligation to provide adequate support for your spouse and children, so this case revolved around what is adequate support, in a legal and moral sense.”

Horst says he is glad to see the judge found the TFMA language violated the spirit of the Charter.

“We should always start from the premise that people have complete autonomy when they draft their wills,” he says.

So unless there’s legislation that specifically says you cannot do something, the testator has the freedom to deal with their property any way they see fit,” Horst says. “Parents sometimes disinherit their children. That happens.”

In Ontario, he says the rules around testamentary succession are tied into the Family Law Act (FLA), which stipulates that people have an obligation to provide support to dependants, which can be a spouse, a child or a parent

“The legislation in Nova Scotia is not as well defined, so I was pleased to see the judge read down the provisions, and decided to exclude non-dependent adult children from the definition of a dependant, which is already what we have in Ontario,” Horst says.

He notes the decision may lead to changes in Nova Scotia, as well as in British Columbia and Newfoundland-Labrador, which were identified in the judgment as having similar legislation.

“I think those three provinces will probably revisit their legislation at some point, to make it a little more strict and to avoid this kind of circumstance,” Horst says.

Another important difference between Ontario and Nova Scotia is that Ontario's Succession Law Reform Act provides that if one spouse dies, the surviving spouse has the choice to take what is provided under the terms of the will or to ask for the matter be dealt with under the terms of the FLA.

“For example, if one spouse died and left everything to their children and nothing to the surviving spouse, that person could make a family law claim against the estate, and it would be dealt with as if they separated on the date of death,” Horst says.

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