All About Estates

Reaffirmation of Testamentary Freedom in Ontario

A recent decision of the Ontario Court of Appeal, Verch Estate v. Weckwerth, reaffirms the autonomy of Ontario testators to distribute their estates as they wish provided that their statutory obligations are fulfilled.

In this case, which was brought to my attention by a post on Lynne Butler’s Estate Law Canada blog site, a testator had executed a will that left nothing to his adult independent children but instead left his entire estate to his daughter-in-law, who was the estranged spouse of one of the adult independent children. Having failed in their will challenge in the first instance, the children appealed to the Ontario Court of Appeal to have their father’s will set aside and to have the estate distributed in a manner more favourable to them. The only ground of appeal they set forth was that the trial judge made an error in failing to find that their father had a moral obligation to provide for his children in his will in a just and equitable manner.

The Court of Appeal cited several reasons for dismissing the children’s appeal, but the decision specifically notes that the “moral obligation claim” advanced by the children was “misconceived.” According to the decision, the moral obligation claim advanced by the children relied on jurisprudence from British Columbia related to a specific piece of legislation, the Wills Variation Act, which has no counterpart in Ontario. Similarly, jurisprudence related to dependant’s relief claims under the Ontario Succession Law Reform Act was found to be irrelevant to the children’s claim because the children acknowledged that they were not dependants of the deceased and asserted no dependant’s relief claims in the proceedings.

In its dismissal of the moral obligation claim of the children, the Court of Appeal reaffirmed the concept of testamentary freedom in Ontario as follows: “The appellants point to no authority in Ontario for the proposition that a competent testator’s autonomous distribution of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children.”


Laura West

About Laura West