Estates & Wills & Trusts

Moral obligations temper testamentary freedom

By Ian Hull

Testamentary freedom — the ability to leave one’s property to whomever one wishes — is a principle long held in the common law of Canada. But as evidenced by legislative reforms and recent jurisprudence, testamentary freedom is not absolute and will likely continue to encounter challenges as society and the law develop. Strangely enough though, current challenges to testamentary freedom are not altogether different from the sorts of considerations that go into other well-established will challenges.

One well-established basis for challenging a will is called testamentary capacity. In my book, Challenging the Validity of Wills, I define testamentary capacity as the ability of the testator “to know and understand that one is executing a testamentary document disposing of assets, the general value and nature of which are known to the testator or testatrix, after having considered all persons having a moral claim to the assets being disposed of” (at p. 19).

The leading case on the law of testamentary capacity, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, though nearly 150 years old, offers an insightful look at one rationale for testamentary freedom. The court says, “The instincts, affections, and common sentiments of [hu]mankind may be safely trusted to secure on the whole a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law” (at p. 817).

The rule of testamentary freedom is “founded on the assumption that a rational disposition”—or a disposition based on the rational choices of the testator—is better than one imposed by law (at p. 817).

However, in order to make rational choices, the testator must be of a sound mind. That is, they must have capacity to make a will. The reason a sound mind is so important, says the court in Banks v. Goodfellow, is because of the moral responsibilities people have to others. The court reasons that if the law [as it was then] permits people the freedom to do what they want with their property, then courts must make sure that testators have testamentary capacity because “a moral responsibility of no ordinary importance attaches to the exercise of” testamentary freedom (at p. 817).

In other words, with great freedom comes great responsibility.

Testamentary capacity was a means to ensure that people were capable of carrying out their freedom responsibly. Failure to fulfill one’s moral responsibilities (such as, provision for a spouse or a next of kin) was one factor that aroused the suspicion of the court, and when issuing decisions, it was a key consideration in a court’s assessment of the testator’s capacity.

The point is: courts have long recognized that moral responsibilities attach to testamentary freedom. In 1870, testators were absolutely entrusted by the law to fulfill their moral responsibilities. However, that not always being the case, succession law has developed to ensure some of those moral obligations are met (for example, one’s moral obligations to one’s spouse or to a dependent.) It may be possible to describe developments in succession law as giving greater affirmation to our individual and collective moral responsibilities. As such, one might ask whether the future of succession law will continue to develop along those lines, namely, giving new definition to what constitutes a moral obligation in the twenty-first century.

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