Estate Planning

Limits on Testamentary Freedom

By Hull and Hull LLP

Testamentary freedom is a highly valued and deeply entrenched idea in our society and in the legal system that governs it. People are often surprised to learn, however, that as cherished a value as testamentary freedom may be, its expression is not unrestrained. 

Testamentary freedom is limited by certain provisions in the Family Law Act R.S.O. 1990 and by dependant relief legislation set out in Part V of the Succession Law Reform Act, R.S.O. 1990. These statutes provide that married spouses and other dependants of a deceased may bring claims against the deceased's estate to receive more substantial shares than they receive under the deceased's will. http://www.e-laws.gov.on.ca/navigation?file=home&lang=en.

The common law doctrine of mutual wills, which recognizes the possibility that a surviving spouse may have a contractual obligation to refrain from modifying his or her will after the death of the first spouse, may also be considered a kind of restriction on testamentary freedom. http://www.hullandhull.com/Text-From-2007-Breakfast-Series-Presentations/oct-2007-wills.pdf, .

Although the testator clearly has a strong say, he or she does not have the absolute right to determine by his or her will who shall be the long term guardian for his minor children. Section 61 of the Children's Law Reform Act R.S.O. 1990 provides that parents may appoint a guardian of their minor children in their wills for the ninety days following their death, after which time, a formal court application must be brought. Also, testators may express wishes as to what becomes of their remains after death which wishes, while clearly morally binding on an executor are not legally binding: it is the executor who has the right to determine the place and manner of burial http://www.hullandhull.com/Articles/nov_2009.pdf http://www.hullandhull.com/Articles/june_2008.pdf. 

Whether grounded in statute, the common law or notions of property, there are many limits on testamentary freedom. 

Julia Evans

Full post as published by Toronto Estate Law Blog on November 17, 2010 (boomark / email).