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Testamentary Freedom

As lawyers, we love to plan ahead and we constantly advise our clients to do so as well. This is why we like contracts, when something is decided before a conflict arises; the ability to react to that conflict is much easier.

One of the key planning documents that we love is the will. This document allows you, as the testator, to direct where your assets are to be distributed after your death.

Recently an Ontario Court of Appeal decision came down affirming the testator’s freedom to distribute his or her property as he or she sees fit. Essentially, the decision said that no one is entitled to receive anything unless there is a statutory obligation.

The ruling comes from a case where a black man cut out his daughter after she had a child with a white man. The argument from the daughter was that the exclusion was racial discrimination and violated public policy. The court ruled that even if that were true the desire to “…guard against a testator’s testamentary dispositions cannot be allowed to overtake testamentary freedom.”

 “There is no statutory duty on a competent testator to provide in a will for an adult, independent child. Testators are free to exclude from their estate children who are not dependents”. That means that if you were to exclude a child from receiving anything under your will, that decision would be upheld regardless of the reason.

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Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.