24 March 2024

Testamentary Freedom: Spence Up Your Life

O'Sullivan Estate Lawyers LLP


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Spence v BMO Trust Company, 2016 ONCA 196, is a topical case which has featured in our blog as recently as January 2023.
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Spence v BMO Trust Company, 2016 ONCA 196, is a topical case which has featured in our blog as recently as January 2023. This case serves as a reminder that testamentary freedom – a will-maker's right to dispose of his or her property as he or she sees fit – is not without limit.

Recent Decisions of the Court of Appeal for Ontario

The Court of Appeal for Ontario took the opportunity to briefly cite Spence in Ihnatowych Estate v Ihnatowych, 2024 ONCA 142, a decision issued February 28, 2024 – just last month – where Justices of Appeal Lauwers, van Rensburg, and Thorburn affirmed at paragraph 42 that the "principle of testamentary freedom means that [the will-maker is] entitled to draft a will that exclude[s] [biological children and their issue]".

In Ihnatowych, a child of a relationship prior to the will-maker's marriage sought to be included as "issue" under the terms of the Will and, as a consequence, a residuary beneficiary of the Estate, together with asserting the interests of his own children – the will-maker's biological grandchildren. An order to rectify the Will was granted, excluding the biological child and his own children as beneficiaries of the Estate, insofar as the evidence failed to demonstrate an intent by the will-maker to include them.

The appeal was dismissed.

Forced heirship, the regime in force in most of the world outside of common law jurisdictions, including the U.S., England and Wales, Australia and New Zealand, as well as of course jurisdictions in Canada, would typically preclude this same outcome in foreign jurisdictions and would require a fixed portion of the estate to pass to children.

Even in 2022, however, the Court of Appeal for Ontario cited paragraph 30 of Spence in emphasizing the importance of testamentary freedom, both in Barsoski Estate v Wesley, 2022 ONCA 399, and in Gefen Estate v Gefen, 2022 ONCA 174:

There is no question that testamentary freedom is "an important social interest that has long been recognized in our society as firmly rooted in our law" (Gefen at footnote 4).

We can see the Spence decision is far from forgotten by the Court which rendered it.

Developments in the Case Law in Ontario - Dependant's Support

Previously, we engaged in an analysis of Lawen Estate v Nova Scotia (Attorney General), 2019 NSSC 162, but what other developments have we seen in the case law since that time?

In Shafman v Shafman, 2023 ONSC 1391, Justice Sanfilippo heavily cited Spence in finding that a will-maker failed to adequately provide for her dependant adult child and, pursuant to the provisions of Part V of the Succession Law Reform Act, RSO 1990, c S-26 (the "SLRA"), the Estate was ordered to make monthly support payments in the amount of $1,250 to the child for the duration of his lifetime.

In particular, the finding in Shafman relied on the principle set out at paragraph 32 of Spence:

The freedom to dispose of her property as a testator wishes has a simple but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator's will, subject to legislation that imposes obligations on a testator [emphasis added, as per Shafman].

Here, the child, who had "never been gainfully employed" (Shafman at paragraph 9), benefited from legislation – the SLRA - that imposed obligations on the will-maker parent.

In Anderson v Andrew, 2023 ONSC 6643, Justice Sanfilippo also cited Spence in awarding dependant's support in a lump sum payment of $2,556,871.00 to a will-maker's spouse. Although the will-maker had left his spouse forty percent (40%) of the residue of his estate, this amount was found to offer inadequate support.

The Estate, however, had insufficient cash on hand to pay the spouse the amount of her dependant's support. For this reason, the Estate Trustees were ultimately ordered to pay "dependant's support in a lump sum payment of the greater of (i) $2,556,871.00 or (ii) 40% of the final balance of the residue of the Estate available for distribution" (Anderson v Andrew at paragraph 187).

Here, the spouse, who had "been unemployed and, without dispute, financially dependent [on the will-maker]" since 1995 (Anderson v Andrew at paragraph 15), also benefited from the provisions of the SLRA.

Adoption of Spence in other Provinces

Not only has Spence been cited in the case law in Nova Scotia, but it has also found favourable adoption in British Columbia, Alberta, Saskatchewan, and Prince Edward Island (see e.g. Angelis v Siermy, 2022 BCSC 31; Bone v Bone, 2020 ABCA 323; Adams Estate v Wilson, 2020 SKCA 38; and, P Monaghan (Est of J Jones) v. R Jones (Est of RE Jones), 2018 PESC 6).

The principle of testamentary freedom is enshrined in Canadian case law, it continues to be cited with favour, and it has met with similar judicial treatment across jurisdictions within Canada.

It is also recognized to be subject to restraints, including those imposed by public policy and legislation, as opposed to being absolute. As such, it seems unlikely the principle itself will be subject to a successful challenge in this country.

With the passage of time, public and legal sentiment may change. For now, however, Spence has had, and continues to have, a reverberating effect.

To ensure your own estate plan remains within the bounds of the testamentary freedom afforded you, develop that plan with the guidance of a knowledgeable professional.

Mark Twain once said: "It is not in the least likely that any life has ever been lived which was not a failure in the secret judgment of the person who lived it."

Regardless of your own perceived failures, your estate plan does not need to be added to the list.

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.

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