Can You Disinherit a Family Member in Ontario?
Estate planning can be tricky, and it can get emotional too. Sometimes, after a heated family dinner or a long holiday visit, you might wonder if it’s possible to leave a family member out of your will. Maybe it’s a strained relationship, a past disagreement, or you just want to divide your assets differently.
It’s important to understand your legal options (and limitations) before making this decision.
If you are thinking about making a will or updating your estate plan, you can book a free consultation with O’Hare Law to discuss your situation:
In Ontario, the rules differ depending on the family member in question, so let’s break it down:
Leaving Out Spouses
If you’re married, your spouse has strong legal protections under the Family Law Act (FLA). When a married spouse passes away leaving a valid will, the surviving spouse has a choice. They can either:
Take what the will gives them, or
Claim an equalization payment under the FLA, which looks at all the net family property accumulated during the marriage and ensures the surviving spouse gets their fair share.
This means that even if you tried to exclude your spouse from your will entirely, they might still be entitled to a portion of your estate. If the spouse chooses the equalization payment, any gifts or bequests under the will are usually revoked unless the will explicitly says otherwise. The choice must be made within six months of the death, so timing is important.
Because of these rules, trying to “cut out” a spouse is complicated. Planning ahead with a lawyer, using tools such as a trust or a marriage contract, can help to balance your wishes with Ontario law.
Other Family Members
When it comes to other relatives, the rules are different. In Ontario, you generally have the freedom to decide how your estate is distributed in your will. This means that adult children, common-law partners, siblings, parents, and other family members do not automatically have a right to inherit from your estate.
However, Ontario law does provide an important protection for certain people who were dependent on you. Under the Succession Law Reform Act, a “dependant” (which can include a spouse, child, parent, sibling, or other person you were supporting) may ask the court for financial support if your will does not make adequate provision for them. When deciding these claims, the court considers factors such as the person’s financial circumstances, the nature of the relationship, and the size of the estate.
Minor children are a common example. Because parents have a legal obligation to support their minor children, a will that leaves them without adequate provision is very likely to lead to a dependants’ relief claim.
Even when someone does not have a strong legal claim, excluding a close family member can still create emotional stress and family conflict. For that reason, some people choose to include a short letter explaining their decision, or leave a small token gift to make it clear that the omission was intentional.
Challenges and Considerations
Even when you follow the rules, someone who has been left out may try to challenge your will. Common challenges include:
Lack of testamentary capacity, meaning the testator was not mentally competent.
Undue influence, meaning someone pressured or manipulated the testator.
Dependants’ relief claims, where partners, children, or other dependants can seek support from the estate.
Working with an estate lawyer is the best way to minimize risks and make sure your wishes are carried out as intended.
Tips for Leaving Someone Out of Your Will
If you are thinking about leaving someone out of your will, consider the following:
Think it through. Before excluding someone from your will, consider whether the decision reflects your long-term wishes or a temporary disagreement. Disinheriting someone who expects to be included can lead to significant family conflict and even litigation.
Be clear. If you decide to exclude someone, make it clear in your will that the exclusion is intentional.
Document your reasoning. A short letter explaining your decision can help reduce family conflict, even if it’s not legally required.
Get professional advice. Ontario laws around spouses, children, and dependants’ claims are complex. A lawyer can ensure your will is enforceable.
Consider alternatives. If your goal is to limit inheritance rather than fully exclude someone, consider trusts or specific bequests.
Deciding to leave a family member out of your will is a personal choice, but in Ontario it comes with legal and emotional considerations. Spouses have specific rights under the Family Law Act, while other dependants may have claims under the SLRA.
Planning carefully, documenting your intentions, and getting legal advice can help ensure your wishes are respected while reducing the risk of disputes. A thoughtful and legally sound estate plan balances your personal wishes with Ontario law and family dynamics, and helps you leave a legacy on your own terms.
If you are thinking about making a will or updating your estate plan, you can book a free consultation with O’Hare Law to discuss your situation:
This blog post is for informational purposes only and is not intended to provide legal advice. If you require legal assistance, before taking any action you should contact us or another qualified lawyer to discuss your situation.
