In accordance with his culture Reuben’s will left all of his assets to his male heir. Is this legal?
The legality of a father’s will may depend on which province’s law applies. If the law of British Columbia governed, there is a very good chance that Samantha would succeed and the court would order the estate be split equally. If Ontario law applied and there were no other legal issues raised concerning the validity of the will, then Samantha would have a less likely chance to win. Why the uncertainty? Let’s look at three cases to explain, Tataryn v. Tataryn, Cummings v. Cummings and Johnson v. Huchkewich.
Tataryn was a case in British Columbia. It was ultimately decided by the Supreme Court of Canada. In summary, the deceased’s will favoured one son and disinherited the other son and gave less money to the deceased’s wife. The court varied the will based on the deceased’s moral obligation to his wife and disinherited adult son.
In British Columbia, unless there is some debt or the favoured child is a dependent, or there is a valid reason for disinheriting a person, each child has a moral and legally enforceable claim against the estate.
The importance of “moral claims” as set out in the Tataryn case was adopted by the Ontario Court of Appeal in 2004 in Cummings v. Cummings. In this unfortunate case a second wife was litigating against dependent adult children of a first marriage. The son, Paul, suffered from a progressively debilitating incurable neuromuscular disease known as Becker’s muscular dystrophy. Paul was arguably entitled to the all of the small estate. Citing Tataryn, Justice Cullity explained, “The issue of the weight to be given to moral considerations is relevant in this case: it is posed quite directly by the [second wife’s] concession that she is not in need of support. On a strictly needs-based approach, I might well be justified in ordering that the entirety of the net testamentary estate be transferred to the support of Paul … I do not think that this would be the correct disposition of the case. I believe that, apart from any residual value that is to be attributed to freedom of testamentary disposition…moral considerations continue to play a part in the analysis.”
So has Ontario followed British Columbia’s lead? Maybe, maybe not. I have reviewed many related Ontario cases post Cummings. To the best of my knowledge no Ontario court has understood Cummings to mean that the moral claim of a disinherited adult non-dependent child was legally enforceable. As you recall both the adult children in Cummings were dependants, which means that the father was providing support or was under a legal obligation to provide support immediately before his death. It may be that the courts apply the moral obligation only for dependents. For example, in a recent Ontario case, Johnson v. Huchkewich, one disinherited daughter challenged her mother’s will. The judge did not even address whether a child’s moral claim constitutes a legal claim. The only relevance of “moral claims” was how it reflected on capacity. The daughter argued that her mother lacked the ability to assess and appreciate the moral claims of her children and therefore did not have capacity. The judge did not accept that argument.
So will the winds of non-dependent adult children’s moral claims from British Columbia blow through Ontario? It still remains to be seen. However, there are a number of lawyers who believe it’s coming. In her article on this topic, prepared for the Law Society of Ontario’s continuing legal education program, Susan Woodley (a very well respected member of the bar in Ontario) answered the question this way: “almost, possibly, probably.”
This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.