Constitutional Challenges With Respect To Will Drafting & Estates

Constitutional Challenges With Respect To Will Drafting & Estates

Courts have not given much attention to testamentary autonomy in the past, but they are now starting to. The Supreme Court of Canada has held that testators in Canada are regarded to have Charter-protected testamentary freedom.

In most common law jurisdictions, individuals can bequeath their property in any way they wish. In a 2016 Ontario Court of Appeal decision, Spence Estate (Re), 2016 ONCA 196, in fact, it was established that the Charter would not protect a family member who has been excluded from a will for discriminatory reasons.

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.

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 :

  1. Requested to divorce their relationship.
  2. By not getting married.
  3. Engage in illegal or criminal conduct.

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. There have yet to be amendments to the definition of “spouse” in major wills and estate-related legislation. The Succession Law Reform Act, RSO 1990, c S 26 and the Family Law Act, 1989, c F 3. 

We highly discourage anyone from seeking out legal advice through this article. 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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