The concept of testamentary freedom has long reigned supreme in Canada, allowing a person to leave their estate to whomever they choose, with limited exceptions. People sometimes use the word “disinherit” to describe a situation where a parent with adult children passes away and purposefully leaves one or more of their children out of their Will entirely. The parent may be estranged from the child or have a strained relationship with them. In other cases, the parent may have felt they provided plenty of financial assistance to one child during their lifetime, so they choose to leave their estate to other family members after their death.
Below, we will look at the concept of disinheriting a grown child and how the legislation can differ from province to province. We’ll also address the rules specific to Alberta and the limitations placed on testators in the province when it comes to providing for family members as part of an estate plan.
Testator Obligations to Provide for Family Members After Death in Alberta
In Alberta, the rules governing Wills and estates are set out in the province’s Wills and Succession Act. Under section 88 of the Act, a testator is obligated to include adequate provisions for family members in their Will. However, the definition of “family member”, as it pertains to this section of the Act, does not simply refer to any person related to the testator. Instead, “family member” is defined as follows:
- A spouse or adult interdependent partner (aka a common-law partner) of the testator;
- A child of the testator who is under the age of 18 at the time of the testator’s death;
- A child of the testator who is 18 years of age or older at the time of the testator’s death, if they are unable to earn a livelihood due to physical or mental disability;
- A child of the testator who is between the ages of 18 and 22 at the time of the testator’s death, if they enrolled in school as a full-time student; and
- A grandchild of the testator who is under the age of 18 at the time of the testator’s death, if the testator stood in the place of a parent for the grandchild before their death.
- Note that a grandparent is considered to have stood in the place of a parent if they “demonstrated a settled intention to treat the grandchild as his or her own” since the child was born or for at least two years immediately before the grandparent’s death.
Adult Independent Children Under Alberta Estate Law
Based on the definition above, adult independent children of a testator are not considered “family members” for the purposes of the Family Maintenance and Support section of the Wills and Succession Act. As a result, there is no legislative obligation for a parent to leave any portion of their estate to an adult child, so long as the child is not dependent on their parent due to a disability.
The question then turns to whether the law will impose what is sometimes referred to as a “moral obligation” on parents to leave a portion of their estate to their grown children. This question is less clear, as the rules vary depending on the province.
The Moral Obligation to Provide for Adult Children After Death
As estates and Wills are governed by provincial legislation, the rules about providing for adult independent children can vary from province to province. For example, in British Columbia, s. 60 of the Wills, Estates, and Succession Act does not distinguish between children based on age or ability when imposing a duty of a parent testator to provide for a child in their estate. Instead, it grants a court the discretion to alter the distribution of the estate under the Will so that it is “just and equitable in the circumstance”.
The Supreme Court of Canada addressed whether a testator has a moral obligation to provide for a person in their Will in a 1994 decision called Tataryn v. Tataryn Estate. The Supreme Court stated that while a moral obligation is relatively uncertain, most reasonable people would agree that a testator has a moral obligation to provide for a spouse or a dependent child (regardless of age) as part of their estate plan. However, the issue becomes more tenuous regarding independent adult children. In this case, the Supreme Court stated:
“… a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made”.
Legal claims take higher priority than moral claims
It is important to note that the Tataryn case originated in British Columbia and, therefore, would have considered that province’s unique sections of the Wills, Estates and Succession Act referenced above. Overall, the SCC found that if the assets of an estate allow for it, all moral and legal obligations of the testator should be met. However, when it becomes necessary to prioritize claims, those with a legal claim should prevail over those with a moral claim.
Since Alberta does not impose a legislative obligation to provide for adult independent children on a testator, courts may be less likely to impose the same level of moral obligation than courts in British Columbia would. If a testator wishes to purposefully exclude a grown child from their Will, they should be sure to consult with a qualified estates lawyer. They must also ensure their intent to exclude the child is clearly and unambiguously stated in their Will. This can be helpful if the Will is challenged after their death.
For Comprehensive Estate Planning Solutions, Contact DBH Law in Calgary
The experienced estate planning and estate litigation lawyers at DBH Law provide responsive and concise legal advice in a personal, professional, and friendly manner. We help guide clients through the estate planning process to reduce tax obligations and the potential for future litigation. If you are involved in an estate dispute, including a dispute over a Will, Power of Attorney, trust, or other estate planning mechanism, contact our experienced estate litigation team to see how we can help protect your rights and achieve the best possible resolution to your matter. We can be reached online or by phone at 403-252-9937.