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ARTICLE · 29 MARCH 2016

Testamentary Freedom And Policy Constraints

Miller Thomson
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It is a hallmark of common law jurisdictions that testators have freedom of testamentary disposition, subject only to three exceptions.

CanadaFamily and Matrimonial
Rosanne Rocchi
Rosanne Rocchi
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It is a hallmark of common law jurisdictions that testators have freedom of testamentary disposition, subject only to three exceptions. In other words, an individual may dispose of his or her property as he or she wishes, even if the manner of disposition is whimsical.

Inadequate Provision for Dependants

Most jurisdictions have legislation that provide a remedy when a testator has not provided for dependants in an adequate fashion.   So, for example, if an individual disinherits a spouse or children whom he or she was obliged to support, that dependant may make an application to Court for an allowance to be made out of the estate.

Unworthy Heir

The second exception relates to the concept of an "unworthy heir".  Typically, the unworthy heir would be a beneficiary who had murdered a testator or a terrorist group who would benefit from the testator's assets contrary to the Criminal Code.

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