Bequest to all family members

Is It Mandatory To Leave a Bequest For All Family Members (including those who don’t deserve it)?

This is a question that frequently arises in client consultations, particularly with respect to clients who have children with addiction issues or from whom they have become estranged. The simple answer is “maybe and maybe not”. The complicated answer is that the Alberta courts have long promoted the principle of giving effect to “testator intent”, i.e., a Testator should be free to dispose of their estate in whatever manner they choose, provided they:

  1. understand the nature of the will and its effect;
  2. have some idea of the extent of the property of which they are disposing under the will; and
  3. are aware of the persons for whom the Testator would usually be expected to provide (even if they choose not to) and be free from any delusion of the mind that would cause them not to benefit those people.

This principle has been overlaid with statutory and common-law provisions under which a Testator must also meet certain legal and moral obligations. Legal obligations include those under federal and provincial statutes: the Divorce Act; the Matrimonial Property Act; the Maintenance Order Act; and the Family Law Act. Those statutes may override provisions of a non-compliant will. For example, a Testator must make provision for dependents, including children under the age of 18, children who are 18 and over but unable to earn a livelihood due to physical or mental disability, and potentially, one’s spouse. For those who fall within these categories, but for whom no provision or insufficient provision was made, Part 5 of the Wills and Succession Act sets out the process for advancing a claim to receive a greater portion or all of the estate.

Moral obligations have been described by the Supreme Court of Canada as taking into consideration “what a judicious person would do in the circumstances by reference to contemporary community standards”. In those situations where a Testator deliberately excludes a non-dependent family member from their will, it is advisable to specifically state within the will that the Testator has contemplated and determined that this person will not receive a bequest from their Estate, and the reason for omitting them. 

Written by Gary Kirk

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