Testamentary Freedom-What are the limits?

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BY VALERIE DYE 

Testamentary Freedom refers to the principle that a testator is free to make a will and leave his property to whomsoever he desires.  This, of course, is provided that the testator is of sound mind. The principle of testamentary freedom is part of the legal tradition of most common law countries. This means that if it is one’s desire to bequeath his entire estate to charity after he dies he is free to do so. Since the principle is such an important one courts will not easily interfere with the wishes expressed by a testator in his will.

Notwithstanding this basic and entrenched principle, there are, in Ontario, various limits to testamentary freedom and the court will sometimes step in to vary the provisions of a will in the interest of fairness and justice.

One instance in which this happens is where a person who has been a dependant of the testator was left nothing in the will. Section 58 of the Succession Law Reform Act states: Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

In Tataryn and Tataryn Estates 91994) 2S.C.R the Supreme Court of Canada highlighted that moral considerations are important is determining whether or not to interfere with testamentary freedom. In that case the testator had left everything for one of his sons while his wife was only allowed to live in the home until her death and another son was left nothing. The court heard the application for dependant support and awarded the wife title to the matrimonial home and divided the residue of the estate between the two sons.

Testamentary freedom is also curtailed by the provisions of the Family Law Act of Ontario. Under the Family Law Act, when spouses divorce, the spouse who has a greater net family property pays half of the difference to the other spouse so that each party leaves the marriage on equal footing. This process called ‘equalization’ may also be used upon death of one spouse whether that spouse leaves a will or dies intestate. The process of equalization curtails testamentary freedom in that it takes priority over any other gift made in the will to anyone else except for gifts made in the will as part of a contract.  Equalization also takes priority over gifts to which anyone else may be entitled under intestacy.  

One may argue that the wishes of the testator should not be interfered with, especially since the principle of testamentary freedom is a fundamental one. However, the principle of testamentary freedom is not an absolute principle. If courts were not allowed to curtail such freedom, mainly on the basis of moral considerations, then one spouse may be able to bequeath his entire estate to someone else and leave the surviving spouse with nothing and with no recourse. Ontario law seeks to prevent this by allowing the surviving spouse to obtain equalization and division of property in the same manner in which it takes place during a divorce.

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