- with Senior Company Executives, HR and Finance and Tax Executives
- in Canada
- with readers working within the Accounting & Consultancy, Banking & Credit and Insurance industries
Testamentary freedom is one of the hallmarks of Ontario's estate planning regime. It gives individuals, when drafting and executing their wills and estate plans, the ability to distribute their assets in the manner that they see fit.
However, this power is not absolute. A number of legislative restrictions exist on testamentary freedom, curbing this autonomy to ensure that certain individuals, such as spouses and children of a deceased person, are provided for in the face of their death.
One such restriction is found under Part V of the Succession Law Reform Act ("SLRA"), which deals with claims for relief by dependants. In short, it provides that if an individual fails to make adequate provisions for their dependants in their will, those dependants have the ability to seek support from the estate via court application.
Who is a Dependant?
Under the SLRA, a dependant is defined as the spouse, parent, child or sibling of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before their death. Who can qualify as a dependant has been interpreted broadly, and can include grandparents, both married and common-law spouses as well as divorced spouses, grandchildren, and individuals whom the deceased has demonstrated a "settled intention to treat as a child" of their family, such as stepchildren.
As a result, there is a wide range of individuals who can qualify as a dependant under the SLRA.
Consider, for example, Su v. Lam, 2011 ONSC 1086, where the court found that the deceased's common-law spouse was entitled to support, notwithstanding that both the deceased and the applicant were married to other people at the time of death.
See also Linseman v. Linseman, 2024 ONSC 6904, where an adult grandson was found to be a dependant of his deceased grandfather, who the court found acted as a father figure.
Stepchildren can also qualify as dependants, such as in Mihaescu v. Zodian Estate (2009), 49 E.T.R. (3d), where the deceased made no provisions in his will for his spouse's minor child from another relationship. The court found that the child was dependent on the deceased, who had become the child's "surrogate father" and financially supported his education, extracurricular activities, and healthcare, among other supports.
What is "Adequate Provision"? Moral Obligations to Dependants
As the caselaw demonstrates, the law is generous when it comes to who can qualify as a dependant. What's more, Ontario courts have emphasized that whether adequate provision has been made for a dependant concerns not only their financial needs, but extends to include society's expectation of what a judicious or sensible person would do in the circumstances.
This so-called "moral obligation" was discussed recently in Shapiro v. Shapiro, 2025 ONSC 2781, where the court found that a widower had a strong legal claim but an even stronger moral claim for support. For the latter, the widower provided evidence demonstrating that the couple had a long and stable marriage, they provided each other with companionship, and the surviving spouse had contributed significantly to the family's accumulation of assets.
Similarly, in Paquette v. Darwin Patterson, Estate Trustee of the Estate of Diane Gail Paquette, Deceased, 2023 ONSC 4062, the adult son brought an application for support against his deceased mother's estate. Even though the court could not find that the deceased was providing support to her son immediately before her death, nor that she had a legal obligation to do so, the court nevertheless imposed a moral obligation.
The evidence demonstrated that the applicant was disabled, had difficulty keeping a job, and received ODSP as his sole source of income. In the end, the court found that based on this moral obligation, the applicant was entitled to support from the estate.
Key Takeaways
While testamentary freedom remains alive and well in Ontario, it is important to recognize that litigation can still arise with respect to your estate if dependants are not properly provided for in your will.
And, as demonstrated in Paquette, financial support is only one part of the equation; moral obligations to family members can be imposed even where there is no legal obligation to provide financial support.
Proper estate planning with an experienced estate lawyer can ensure that adequate dependant support is included in your will, avoiding potentially costly and time-consuming litigation down the road.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
