Wills, Estate & Power of Attorney

Did Mother Have a “Moral Obligation” to Not Leave One of Two Adopted Kids Out of Will?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Did Mother Have a “Moral Obligation” to Not Leave One of Two Adopted Kids Out of Will?

A full five years ago we reported on a Estates and Wills case called Spence v. BMO Trust Company, in which the Ontario Court of Appeal confirmed an important legal principle:  That when a person makes a Will, they are free to distribute their property precisely as they wish. Subject to legislative constraints, no one has a legal right to receive anything under a Will unless the testator wants them to – and even a court cannot force a testator’s hand in this regard.

The Appeal Court described this deeply-rooted principle of “testamentary freedom” in the following way:

(2) Testamentary Freedom

… A testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle. As this court emphasized [previously]:

The freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law.

The Supreme Court has also recognized the importance of testamentary autonomy, holding that it should not be interfered with lightly, but only in so far as the law requires: …

The freedom to dispose of her property as a testator wishes has a simple but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator.

“Based on the testamentary freedom principle, the daughter did not succeed in getting the court to recognize her as having any legal entitlement in her father’s estate.” – Susanna Crichlow, Associate Lawyer

In the Spence case, a father’s Will expressly excluded his daughter from inheriting anything from him, and stated it was because “she has had no communication with me for several years and has shown no interest in me as her father.”  Based on the testamentary freedom principle, the daughter did not succeed in getting the court to recognize her as having any legal entitlement in her father’s estate.

This principle came up again very recently in a decision called Stewart v. Stewart.  It involved a woman named Audrey who had two adopted children – Ronald, and Sandra.   When Audrey died in 2016 at the age of 86, she left everything to Ronald in a Will she had prepared in 2011.

Having been entirely excluded from Audrey’s Will, Sandra asked the court to overturn it, claiming (among other things) that Audrey had had a moral obligation toward her. She claimed to the court that Audrey might have been improperly influenced by her now-deceased husband’s wishes in this regard, and that there was some talk in the family of wanting to expressly disinherit Sandra’s children (i.e. Audrey’s grandchildren).

She also accused Ronald of unduly influencing Audrey to make that 2011 Will for his benefit, a claim that court rejected based on the evidence.  Indeed, the court found that Ronald and his children had assisted Audrey to an admirable extent in the years leading up to her death, and did so in a manner that was respectful of her independence.  Nor was there evidence that Audrey did not understand the nature and significance of the Will she signed.

As for Sandra’s argument around Audrey’s purported moral obligation toward her, the court merely reaffirmed that under the principles of testamentary freedom:  Audrey was free to dispose of her property as she wished.  The court added that since it had ruled the Will to be duly executed by Audrey, and at a time when she had full testamentary capacity, knew it contents, and was not influenced by Ronald, the court was “bound by law to give effect to the Testator’s testamentary freedom.”

The court accordingly declined to overturn Audrey’s Will, leaving Sandra out of any part of an inheritance.

For the full text of the decisions, see:

Spence v. BMO Trust Company, 2016 ONCA 196

Stewart v. Stewart, 2021 ONSC 1222

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.