Can Children Challenge a Will on Fairness in Ontario?

By Merovitz Potechin on Thursday February 13, 2020.

Most provinces, including Ontario, will not allow non-dependent adult children to challenge a will on the basis of fairness. However, section 60 of British Columbia’s  Wills, Estates and Succession Act, S.B.C. 2009, c. 13, states that if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children. This has led to a number of will challenges in British Columbia on the basis of fairness and unequal distribution under a parent’s will by non-dependent adult children.

Reapportioning the Estate Based on Fairness and Inequality

In a recent Supreme Court of British Columbia case, Grewal v. Litt, 2019 BCSC 1154, adult children who were financially independent from their parents were successful in varying a will based on fairness and inequality in the distribution of their parent’s estate.

The Litt’s had six children, four daughters and two sons. The Litt’s had mirror wills that specified that the estate would be divided between their children as follows: $150,000 to each of their four daughters (7% of the estate) and everything else would go to their two sons (93% of the estate). The Court’s analysis shifted away from the daughters’ needs-based relationship and dependence on their parents in challenging the will on fairness, towards a needs-based analysis of the parents on their children, specifically their daughters, during their lifetime. The Court reasoned that although all of the children were financially independent, the parents had a moral obligation to their daughters, who worked hard throughout their lives to care for their parents. The Court also took into consideration the parents’ discrimination towards their daughters as a result of outdated values.

Ultimately the court agreed to reapportion the estate amongst the children. In reapportioning the estate, the Court held that 60% of the estate was to go to the daughters, resulting in approximately $1.35 million each, and the sons received 40% of the estate, resulting in approximately $1.8 million each.

Were the testator’s reasons valid and rational?

Even in British Columbia where the concept of the court’s interference with testamentary wishes is at its strongest, an unequal division of an estate does not mean that judicial intervention is required or even justified. When there is an unequal estate, the Court has to determine whether the facts are in line with the testator’s obligations and wishes to treat a dependent or non-dependent adult child differently, while also taking into consideration the size of the testator’s estate, before making a decision to modify the testator’s original wishes for the distribution of their estate. That’s not to say that a testator in British Columbia is prevented from disinheriting their children or cutting a spouse out of a will. However, if they do so, upon a will challenge, the Court will look at the testator’s reasoning and examine whether the testator’s reasons are valid and rational.

These are some questions that the British Columbia courts will take into consideration when deciding if a will can be challenged based on fairness:

• Who took care of the parents during their lifetime?
• Were there inter vivos gifts in addition to the testamentary gifts?
• Who contributed to the assets of the estate?
• What was the relationship between the child and their parents like?

Can Children Challenge a Will on Fairness in Ontario?

Ontario does not have a similar provision which would allow non-dependent adult children to challenge a will or request a variance to a parent’s will on the basis of fairness. The courts will not set aside a will simply because interested parties are unhappy with it or deem it unfair, for example, if certain family members were left out altogether and received no inheritance. The position of the Courts is that a valid will should be enforced and the wishes of the testator should be respected and followed. That being said, wills in Ontario can be challenged on different grounds and the following are some that can be pursued: 

• Undue influence; 
• Lack of capacity to make a will;
• Mistakes or noncompliance with formal requirements (unsigned, not properly witnessed); 
• Fraud; 
• Lack of provision for spouse or dependants; and 
• Unclear testator intentions. 

The onus to prove that a will is invalid rests with the individual who is challenging the validity of the will, as the courts in Ontario will assume that the testator was competent when they executed it.

As such, when making a will in Ontario, subject to your obligations to support a spouse or dependent child under Part V of the Succession Law Reform Act, you have extensive testamentary freedom.

If you have questions about challenging a will in Ontario, please contact our Estate Litigation team at Merovitz Potechin LLP.