Making a Will: Testamentary Freedom

It isn’t surprising that after the death of a loved one, there are often disputes about the will. What is testamentary freedom in making a will? Being left out of the will can be difficult and is often not taken well and relief is sought in the Courts, typically at great expense. This article reviews a decision of the Ontario Court of Appeal that examined this issue.



The mother and father lived in England and had two daughters, D and V. The parents split up in 1965 and in 1979 the father moved to Canada with V. The mother remained in England with D. The two sisters never communicated with each other after separation.

V gave evidence in Court that her relationship with her father changed in 2002. The reason for this is quoted directly from the Court decision: In about September 2002, my relationship with my father came crashing down. That is the time when I told my father that I was pregnant. When he found out that the father of my child to be was white, my father told me that he was ashamed of me. From that point onwards, my father restricted his communications with me… My father made it very clear to me that he would not allow a white man’s child in his house… The reason my father severed the relationship with me is because I gave birth to a child fathered by a white man.


The Will

You have testamentary freedom in making a will. The father made a will in 2010 leaving almost all of his estate to D, who hadn’t spoken to her father since he moved to Canada. The will expressly excluded V, which stated: “I specifically bequeath nothing to my daughter, V, as she had no communication with me for several years and has shown no interest in me as her father.”

The father died in 2013 and not surprisingly, V was not happy to learn that she had been left out of the will.  V initiated court proceedings and argued that the will ought to be set aside on public policy grounds, specifically that the clause in the will was racist.


Court Determines the Testator Can Choose His Beneficiaries

At trial, V was successful and the father’s will was set aside. This decision meant that the father died without a will and therefore the intestate rules applied, resulting in V receiving half of the estate. As the estate was valued at approximately $400,000, this was a significant difference.

The case then went to the Ontario Court of Appeal which overturned the trial decision. The Court found the will was valid, which meant that V was left out. The Court made a few comments that are important.

  1. An independent adult child has no legal entitlement to share in the estate of a parent. This means that as an adult child, being left out of a will may be difficult to understand, but that doesn’t make the will invalid.
  2. Evidence about the testator’s intentions is not admissible when the testator’s will is clear and unambiguous.

In effect, the Court found that the will was clear and there was no reason to set it aside. This decision was appealed to the Supreme Court of Canada, who declined to hear it, which meant the Ontario Court of Appeal decision was final.


Save on Legal Fees and Get Legal Advice on a Will Early

Family disagreements may be common and the result can be found in a will. If a child is not speaking to their parent, turning to the Court to undo the relationship will not work. So long as the intention in making a will is clear, often times the Court will enforce it. You have testamentary freedom in making a will.

One further point here is that the family had spent over $100,000 on legal fees, approximately 25% of the value of the estate. And the legal fees would have gone up much higher on the Supreme Court appeal. Litigation is costly and can quickly reduce the inheritance. Finding ways to negotiate without litigation may be in everyone’s best interest.

The important thing here is that you are free to make a will in any way that you choose. In this instance, there was a dispute between a father and daughter. The father was able to leave his daughter out of the will.

This was successful because of very clear language in a will. A lawyer can help ensure your wishes are enforced upon your death. Contact Hearty Law to receive assistance on your will.

Hearty Law serves Toronto, Ottawa and surrounding areas. Email or


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