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Thursday, January 5, 2017

A win for testamentary freedom

"Testamentary freedom" means the right to leave your estate to whoever you want. We all know there are some legal restrictions on testamentary freedom. For example, we know that if we leave our spouses out of our wills, the spouses have the right to sue our estates, and are usually successful.

Some of the rules that exist to restrict our testamentary freedom are there to protect the general public and are known as "public policy" rules. For example, you cannot say in your will that your son will only inherit from you if he commits a crime.

But how far do those restrictions reach? How much freedom do we really have to put whatever we want in our wills? Over the last year there has been quite a bit of discussion about this because of the estate of Eric Spence in Ontario.

Mr. Spence made a will in which he left out one of his daughters. She contested the will on  public policy grounds, saying that she had been left out because she had had a child with a white man, against her father's wishes. In other words, she said that her father was racist and should not be allowed to discriminate against her. In 2015, the Ontario court agreed with the daughter and struck down Mr. Spence's will. The estate appealed to the higher court.

In 2016, the Ontario Court of Appeal overturned the decision. It said that the will is valid. The court said that an adult child who is independent of her parents doesn't have any right to inherit and therefore there is no need for the father to explain or defend his choice to leave her out. In terms of public policy, the court said that the Charter of Rights (which prevents discrimination in public institutions) does not apply to private matters like wills, nor does the Human Rights Code.

To read more about this decision, click here to read a post by Daniel Bernstein, a lawyer in Toronto.

I appreciate the clarity this decision brings, and I have to say I wholeheartedly agree with it. Why should adult children with their own lives and agendas be able to dictate what Mom or Dad do with their money? Why should they automatically inherit even though in some cases they haven't even talked to the parent in years (that was the case in Spence)? The sense of entitlement people have these days is unbelievable.

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