Constitutional Challenges With Respect To Will Drafting & Estates

Testators (i.e people who make a will) in Canada are deemed to have Charter-protected testamentary freedom to benefit whomever they want in their wills and to exclude anyone they wish (though there are some exceptions to this rule, explained below). Constitutional protection of testamentary autonomy generally had not been addressed by courts until more recently, and it has yet to be fully fleshed out.

Most common law jurisdictions today provide individuals with testamentary autonomy, and this is supported by the Canadian Charter of Rights and Freedoms. In a 2016 Ontario Court of Appeal decision, Spence Estate (Re), 2016 ONCA 196, it was established that the Charter would not protect a family member who has been excluded from a will for discriminatory reasons.

In other words, a child or individual that is not a dependant can be excluded from a will based on a certain ground of discrimination prohibited by the Charter (e.g. religious, sexual or racial discrimination), or for any personal reason. With this ruling in mind, it is evident that as of currently, neither the Charter nor Ontario’s Human Rights Code can apply to testamentary dispositions that are of a private nature.

However, this principle is not quite universally recognized just yet, as some civil law jurisdictions still maintain some form of forced heirship (where direct next of kin inherit property and estate automatically).

It is recommended that, for testators who intend to leave out family members completely, they outline their reasons for doing so in the will or a separate letter. This information is integral, as it would be evidence that the testator had intentionally considered whether or not to make a gift to the excluded family members.

Exception #1 – Dependant Provision

The laws surrounding wills and estates are generally governed by provincial law, and most provinces have legislation that requires that testators make enough provision for their dependants. In cases where adequate provision was not prepared, the legislation then allows the dependant to make a claim for relief against the estate.

This is often seen in cases where the children are minors or have disabilities. In such cases, the courts ultimately have discretion in determining what is “adequate provision” in the circumstances, with consideration of a number of case-by-case factors.

Exception #2 – Violation of Public Policy

A second exception to testamentary freedom includes situations where the granting of a will is conditional upon the beneficiary doing something that violates public policy. For instance, they may be asked to divorce their partner; or to not get married, or to engage in illegal or criminal conduct.

Ultimately, there are times where an individual’s freedom to choose beneficiaries freely is trumped because those choices or attached conditions violate Canadian public policy. Generally speaking, because testamentary freedom is constitutionally protected, any limitations on this right would have to be reasonably justifiable under a Charter analysis, and a violation of public policy is considered valid justification.

Other Constitutional Challenges

One area of growing constitutional claims with regards to estates is that of common-law relationships and same-sex spouses. In Ontario, neither a common-law spouse nor a same-sex partner has entitlement in cases of intestacy (i.e. where a deceased did not have a will upon death). There have yet to be amendments to the definition of “spouse” to include common-law partners in a few major wills and estate-related legislation, such as the Succession Law Reform Act, RSO 1990, c S 26 and the Family Law Act, RSO 1990, c F 3. As a result, charter challenges continue to be made by common-law spouses and same-sex partners throughout Canada.

Going to court to challenge a will or estate can be costly, and thus it is important that you are certain you have a solid case before proceeding. If you believe you have the grounds for a constitutional challenge claim or have questions about testamentary freedom and its exceptions, your next step would be to meet with one of our qualified lawyers who can thoroughly investigate your facts and explain your legal options.

Nothing in this article should be considered or relied on as legal advice or opinion. This article only provides general information and should you have any further questions regarding the wills, estates and constitutional challenges, please contact us to book a free initial consultation 905-366-0202 or through our website here.

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