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Testamentary Freedom in Wills & Estates

There is a misconception that once you’ve made a Will that you’re good to go-literally. But, estate planning is a fluid process that will only capture your intentions as they relate to a specific period in your life. As your personal circumstances change, prior planning should be revisited to make sure that it still makes sense to leave everything to your mother, for instance. As soon as you’re gone, whatever is in that Will you made in 1999 will stick even if for years before your death you were telling your brother it was all his. Although this really may have been your intention, the principle of testamentary freedom will win over evidence your brother may later bring forward to show that what is written in your Will is wrong. At your death, that Will you made is, in most circumstances, “set in stone”.

Testamentary freedom refers to your ability to express how the assets you accumulated during your lifetime will be dealt with on your death. You will typically express these intentions in your Will. In the recent and controversial Ontario Court of Appeal decision, Spence v. BMO Trust Company, the Court emphasized that subject to certain legal limitations, a private expression of your testamentary freedom can’t be interfered with, even if the contents of your Will are in the words of the Court “distasteful, offensive, vengeful or small-minded.”

In the Spence case, the Court overturned the decision of a lower court to set aside the Will of Emmanuel Spence who excluded one of his two daughters, Verolin Spence, from receiving anything from his estate on the grounds that he and Verolin had an estranged relationship. Verolin provided evidence that the that the real reason he left her nothing was because she was a black woman who had a child by a white man, and that his Will was an expression of a racist intention, which was ultimately against public policy and could not stand.

The Court of Appeal rejected Verolin’s evidence, stating that her father’s Will was a private expression of testamentary intention and that although Mr. Spence gave a reason for excluding her from his Will, he did not need to because he had no legal obligation to leave Verolin anything. Further, the Will did not call on the estate trustees or the beneficiaries of the estate to do anything that was against public policy. In light of this, the court determined that, on its face, the Will did not offend public policy and there was no reason to supplement her father’s clear intentions as expressed in his Will with evidence originating outside of the four corners of the Will document.

The Court’s reasoning highlights that an expression of testamentary freedom, while it can’t be easily interfered with, it isn’t limitless. You can leave your estate to anyone you like, but a court may interfere with the expression of your testamentary intention if you had a legal obligation to provide for someone like a spouse or a minor child and failed to do so; or, as the Court in the Spence case noted, your Will directs your estate trustees or the beneficiates of your estate to do something that is against public policy. For example, in the past, a court overturned a Will where an individual directed that the estate trustee pay his entire estate to a neo-Nazi organization.

The Court’s decision to uphold the principle of testamentary freedom even in situations where the outcome can be unfair makes it more important than ever to make sure that what your Will says is actually what you intend. Making a Will is not a one-time event. Be sure to review your Will every two to three years to make sure that the Will makes sense in the big picture of your life and update the document as necessary. 

This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.

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