Get Out of My Will

In nearly every family there are dynamics at play which on occasion erupt into open warfare.

It could be that one of your children or other person close to you alters their behavior towards you, there is a change in their life style, they start associating with persons you perceive as “sketchy.” they spend money without regard to their creditworthiness, they get involved in drugs or other additive practices, they chose a partner you do not care for etc., etc. In any event none of these activities or associations align with your own view of the world. Despite efforts to accommodate these irritants they overwhelm you and you decide that enough is enough and Johnny or Jessica does not deserve anything after you are gone and you want them out of your will.

The concept of testamentary freedom is a fundamental principle in Canada and except for restrictions imposed through case law or statutory regulation, it still stands as a pillar which a person can rely upon. The Succession Law Reform Act protects a “dependent” (as defined in that Act) from not receiving a certain level of financial support. The Family Law Act provides that a spouse of a deceased person can elect to take their entitlement under the provisions of the will or receive equalization from the estate similar to that on a separation or divorce. Also if a gift is deemed to be against “public policy” it can be challenged. As to that concept two recent cases dealt with this topic …. a gift to a white supremacist group and a denial of a share to a daughter who had become pregnant by a person of a different race. In the first case the gift was denied and in the second the court upheld the provisions of the deceased’s will.

When someone finds out they have been disinherited the normal human emotions of anger and pain arise which often lead that person to seek legal help. This then can evolve into lengthy, expensive proceedings not to mention ill feelings within the family unit which could last for years. So before you decide to “cut out” that “so and so” or if you have already done so, you might want to consider getting some legal advice as to whether your decision is based on solid legal grounds.

This article is not to be construed as legal advice. You are encouraged to consult a professional.