*This blog post was written by Ruth Paul, articling student at de VRIES LITIGATION LLP*

Testamentary freedom is a guiding principle in Canadian estates law. It operates under the presumption that individuals are free to dispose of their estate however they see fit. However, testamentary freedom is not an absolute right. It is subject to statutory limitations that vary between provinces.

In Ontario, these limitations are imposed by the Succession Law Reform Act (“SLRA”). The SLRA permits the court to order adequate provision for the proper support of a deceased’s dependents if the deceased’s will failed to do so. Section 57(1) of the SLRA defines a dependant as a spouse, parent, child or sibling “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” In Ontario, testators must only provide adequate support to dependant children. There are no obligations to non-dependent adult children and testators are free to decide what – if anything – should be left to these children.

British Columbia’s Wills, Estates and Succession Act (“WESA”) further limits testamentary freedom. The WESA allows the court to adjust a will if the testator failed to adequately provide for their spouse or children – whether the children are dependant or independent. In Bautista v Gutkowski Estate, 2023 BCSC 1485, the British Columbia Supreme Court (“BCSC”) found the primary objective of the WESA is “to ensure that adequate, just, and equitable provision is made for spouses and children of a will-maker.” The second objective – the protection of testamentary freedom – is subordinate to this primary objective.

The recent decision in Kan v Cheong, 2024 BCSC 1633 demonstrates that even when a testator intentionally limits a non-dependent’s inheritance, the primary objective of WESA prevails. Tat Kuan Cheong (the “father”) died on April 22, 2021. He had three daughters: Celina, Ina, and Sophia. While the daughters shared the same biological parents, they grew up in different households across China.

At 4-years-old, Celina moved to Hong Kong to live with her aunt and uncle. Despite knowing that she was not their biological daughter and never being formally adopted, Celina considered the couple to be her parents. Celina had a privileged childhood. She grew up in a modern home in a prestigious neighbourhood. Even with material privileges, Celina’s childhood was riddled with emotional trauma. Celina witnessed her uncle’s alcoholism and his physical abuse towards her aunt. Due to her uncle’s violent behaviour, Celina and her aunt lived in fear. While Celine knew about her biological father and sisters, she only saw them on special occasions and school holidays.

In contrast, Ina and Sophia grew up far less financially privileged. Sophia lived in a small studio apartment with her father. Ina lived with her grandmother and cousins in an apartment without modern amenities, such as flush toilets and hot water. While less materially privileged, Sophia and Ina grew up in loving households surrounded by family. They enjoyed holidays with their father, and both developed a strong relationship with him.

At 18-years-old, Celina moved to Canada. She was unhappy in Hong Kong because she felt alienated from her family and experienced trauma from being abandoned as a young child. Her sisters and father later followed her to Canada. While Ina and Sophia maintained a close relationship with their father, Celina did not.

On February 22, 2021, the father made a will. The father advised his drafting lawyer that he had two daughters (Ina and Sophia) and a niece (Celina). His will included three specific bequests:

1. $10,000 USD left for Celina (whom he referred to as his “niece” in the will);
2. $10,000 USD left to a sister; and
3. $20,000 CAD left to his goddaughter

The father divided the residue of the estate equally between Ina and Sophia, who would each receive about $340,000 after the bequests were made.

Celina claimed her bequest of $10,000 USD was inadequate. She commenced a will variation proceeding, pursuant to WESA, to divide the residue of the estate equally between her and her sisters. While the BCSC found that the father had no legal obligation to provide for Celina in his will, the court held that he had a moral obligation to do so and granted Celina an equal one third share of the residue of the estate.

The father’s decision to “relinquish his paternal role” in Celina’s life strained their relationship. Ina and Sophia also resented Celina for growing up financially privileged. These circumstances alienated Celina from her family and made it difficult for her to forge a father/daughter relationship. The BCSC found that the inference that the father did not consider Celina to be his daughter was not a valid or rational reason to disinherit her from the will. No matter the father’s opinion, Celina was his biological daughter.

Moreover, the drafting lawyer created the will and provided advice based on the assumption that Celina was the father’s niece. Since the will was created without the benefit of legal advice regarding the father’s moral obligations to Celina, the BCSC gave less weight to the WESA’s second objective – testamentary freedom.

British Columbia’s emphasis on a parent’s “moral obligation” to their children is a stark contrast to the supremacy of testamentary freedom in Ontario. Even when parents disinherit their non-dependent children for seemingly unacceptable or offensive reasons (see Spence v. BMO Trust Company, 2016 ONCA 196 where a daughter was disinherited for having a mixed race child), Ontario courts reiterate that there is no statutory duty for parents to provide for their adult, independent children.