Contesting A Will In Ontario: Canadian Tax Lawyer Guide

Introduction - Testamentary Freedom and its Restrictions in Ontario

In Spence v. BMO Trust Company, the Court of Appeal for Ontario confirmed that an individual has the right to "dispose of his or her property as he or she chooses" upon death. As well, the Supreme Court of Canada in Tataryn v. Tataryn Estate recognized the significance of testamentary freedom indicating that it should not be interfered with lightly "but only in so far as the statute requires". However, provincial legislations are carefully crafted to include provisions that infringe upon and restrict an individual's testamentary freedom. For example, the Ontario's Family Law Act includes specific matrimonial rights that restrict an individual's absolute testamentary freedom. In addition, under the Family Law Act a deceased person may have certain financial obligations (i.e., spousal support) and if those obligations are not met, the surviving spouse could potentially become entitled to a claim