Can You Put Whatever You Want in Your Will?

When it comes to making a will, many people assume they have complete freedom to distribute their property however they wish. And while Ontario law does provide a lot of flexibility when it comes to estate planning, that freedom is not absolute. There are important exceptions that can limit what your will is allowed to do and how effectively it carries out your wishes.

If you’re planning to make a will or update an existing one, here’s what you need to know about what your will can and can’t do under Ontario law:

The General Rule: Testamentary Freedom

In Ontario, the law generally allows you to decide how your assets will be distributed after death. This is known as “testamentary freedom”. You can choose to leave your assets to anyone you like: your children, your friends, a charitable organization or even your favourite pizza joint.

This freedom is a fundamental aspect of estate law in Ontario and sets it apart from jurisdictions with “forced heirship” rules, where you are required to leave portions of your estate to certain people. However, testamentary freedom in Ontario does have some limits.

Limits on Testamentary Freedom:

1. You may have a duty to certain dependants.

Under Ontario’s Succession Law Reform Act, certain people may have the right to claim financial support from your estate if they were financially dependent on you prior to your death. These people are known as “dependants”, and they can include:

• A spouse (this includes married and, in some cases, common-law spouses);

• Children or grandchildren;

• Parents or grandparents; and

• Brothers or sisters.

If you were providing for a dependant before your death, or had a legal obligation to do so, and your will fails to leave them adequate support, that person may bring a “dependant support claim” against your estate. If the court agrees that proper provision was not made, it can override your will to provide for the dependant out of your estate assets.

2. Your spouse may elect to claim equalization.

If you are legally married, your spouse has an important option on your death: they can choose between accepting what you have left them in your will, or making an “equalization claim” under the Family Law Act. Calculating an equalization claim can be complex, but the basic idea is that your spouse is entitled to half the difference between your and their net assets gained during the marriage. You should keep this in mind when preparing your will, especially if you are not planning to leave all or a significant portion of your estate to your spouse.

3. You must comply with domestic contracts and court orders.

If you’ve entered into a marriage contract, cohabitation agreement, or separation agreement, those documents may contain legally binding promises about how your assets will be dealt with when you die. For example, you may have agreed to leave your spouse a specific portion of your estate, or to maintain a life insurance policy with them as a beneficiary.

Your will must respect those obligations. If it doesn’t, your estate could be subject to a legal challenge, and the court may enforce the terms of the agreement over your will.

4. Promises you’ve made could be legally enforced.

In some cases, promises made during your lifetime (especially if someone acted on them to their detriment) may result in legal claims against your estate. This often arises in cases where someone provides care, work, or financial support in exchange for a promised inheritance. For example, if you told your grandson that you would leave him your house if he moved in and cared for you for the remainder of your life, and he spent years caring for you based on that promise, then he may have a claim against your estate if your will left the house to someone else.

5. Illegal or discriminatory conditions are not enforceable.

A will can include conditions, but they must be lawful and not contrary to public policy. A condition that encourages someone to break the law, or that discriminates based on race, religion, gender, or sexual orientation, may be considered invalid. For example, you can’t leave $10,000 to your best friend on the condition that she eggs your ex-boyfriend’s house - in that case, the court may strike the condition and allow the gift to be made unconditionally, or it could void the gift altogether.

6. Some property doesn’t pass through your will at all. Certain types of property, such as assets held in joint tenancy with another person, or with designated beneficiaries (e.g. life insurance, RRSPs, etc.) typically pass directly to the surviving owner or named beneficiary, regardless of what your will says. If your intentions have changed, you may need to take steps outside your will to update these parts of your estate plan.

In summary, while you do have significant control over how your estate is distributed, a will that doesn’t comply with your legal obligations and respect the rights of others could be invalidated by the court. You should consider legal duties to dependants, rights of married spouses, existing contracts, and the nature of your assets. Ignoring these issues can lead to unintended consequences, costly legal disputes, and stress for your loved ones.

Thoughtful planning can help avoid future disputes - and ensure your wishes are carried out as intended.

If you have questions about your legal obligations or need help with your estate planning, please contact us to schedule a consultation

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.