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Certain obligations can trump testamentory freedom

As regular readers of this column undoubtedly know there is a seminar set for June 5, 2012. For this column, I want to focus on one aspect of the seminar, organized by B’nai Brith Canada’s Estates and Trusts, Lawyers Division, that deals with the moral obligation of parents in their testamentary planning to include children as beneficiaries.

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

In Tataryn, a British Columbia case, the court stated that a parent has a moral duty to act like a judicious parent and give a proper share of the estate to his or her spouse and children. In the court’s view, this obligation is based on the prevailing societal, legal and moral norms. The court noted that the moral claims of adult children are not as strong as dependants, but if the estate is large enough, the court can vary the will and provide for the disinherited adult child who is not a dependant. The Ontario Court of Appeal, in the Cummings decision, indicated that statutes in British Columbia and Ontario are similar enough that the principles of Tataryn apply to  Ontario. So let’s review the facts of the case in our seminar and see how an Ontario court might rule.

In the fictional scenario before the Moot Court, the elder Mr. Shapiro had two children. In his will, he divided his estate equally between them, but to inherit, each child was required to marry a Jewish spouse. In the Moot Court, the executor and the daughter are arguing that Mr. Shapiro’s will is valid and should not be changed. The son, who chose to marry outside the faith, is arguing the opposite.

Kimberly Whaley, counsel for the disinherited son, will be arguing that the principles of Tataryn have been accepted by Ontario’s Court of Appeal and accordingly the Moot Court should vary Mr. Shapiro’s will and give the disinherited son his half of the estate. She will point to the Ontario case of Perilli v. Foley Estate, where the judge said that in determining how much to award a dependant who was disinherited, the court should not just look to need, but also consider the deceased’s moral duty to the dependant. Clearly the decisions in  British Columbia are having some impact. Whaley will be arguing that, given that Ontario’s Court of Appeal has adopted the principles of Tataryn, the court should vary a will where a parent has not complied with his moral duty to act like a judicious parent and disinherited a son who conducted himself in a way that is acceptable to the majority of Canadians.

Kelly Charlebois will be arguing that Ontario law is different from that of British Columbia. As counsel for the executor and daughter, she will be pointing out that to date no Ontario court has understood Cummings to mean that the moral claim of a disinherited adult non-dependent child is legally enforceable. Ontario cherishes the principle of testamentary freedom, as it has for centuries, and that is why both the statute and the court decisions in this province have never adopted the law of British Columbia.

The seminar will take place on June 5, 2012, at Shaarei Shomayim Synagogue, 470 Glencairn Ave., Toronto, ON M5N 1V8. Registration is at 7:30 a.m. and the Moot Court will begin at 8 a.m. The event is open to lawyers and accountants. Those lawyers and/or accountants interested in attending should contact Anita Bromberg, B’nai Brith Canada, at (416) 633-6224 ext. 130 or at

Toronto Estate Litigator - Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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