Can I leave my estate to whoever I want to?

Don't you wish legal questions had simple answers? A straightforward "yes" or "no"? Well, this one doesn't have a simple answer.

Theoretically, a person making a will does have the freedom to leave his or her estate to any person or charity that seems appropriate. But there are restrictions.

The restrictions may have some variations from place to place, but one constant across Canada is that everyone must adequately provide for the following dependants in his or her will:
-  their spouse (legal or common-law)
-  their minor children (legitimate or not)
-  their adult children who are prevented from earning a living by a mental or physical handicap

When I say that a person must provide for these individuals in his or her will, I mean that should the person fail to do so, anyone on that list (spouse, minors, disabled adults) automatically has the right to contest the will to get a larger share of the estate or even the whole estate. These cases really do happen on a regular basis, and I've handled many of them myself.

You'll notice that adult children who are not disabled are not on the list. Contrary to what many people think, you are not required by law to leave your estate to your adult children. If you choose not to, you should be aware that you will be going against popular tradition and will probably disappoint your kids. This doesn't mean that you can't do it; it just means you have to take extra care to have a will properly drafted, your capacity documented, and your lawyer's file stuffed full of noted about why you made this decision.

Laws dealing with wills and estates are provincial (except for taxation) so there are some differences between the provinces. For example, I note that there are several recent cases from BC in which the estate distribution set out in the will was successfully contested. In my opinion, those same cases would not have succeeded in say, Alberta, because the law that allowed the change in BC doesn't exist in Alberta. Obviously these laws will allow or prevent you from leaving your estate to whoever you want to.

All of this discussion pre-supposes that when you make your will, you have mental capacity to do so and are acting freely with no coercion by anyone. If your mental capacity has deteriorated to the point where you are making unreasonable decisions, the law says that you can't make a new will, in effect binding you to the will you made before you lost capacity. For example, if you suddenly decided to make a new will leaving your life savings to a new friend you just met three weeks ago instead of your children, you should assume that someone isn't going to like that and is prepared to contest the will.