Cutting a child out of a Will is, perhaps, one of the most difficult things a parent can do. In fact, many parents feel obligated to leave their Estate to their children—no matter how ungrateful or irresponsible they are. However, the reality is that parents are not obligated to leave anything to their independent adult children.

Recently, the Ontario Superior Court in Stewart v. Stewart, 2021 ONSC 1222 ruled that a parent can exclude their children from their Will if two conditions are met: the parent has capacity at the time they make the Will, and the parent is not being pressured to cut the child out of the will (in law, we call this “undue influence”). There is serious debate on whether cutting a child out of a Will is immoral. The Court confirmed that, in Ontario, this question is irrelevant.

In Stewart, Sandra Stewart objected to her mother’s Will when she found out that her mother had cut her out, leaving the entire Estate to her brother Ronald instead. Justice Turnbull concluded that the mother had capacity to execute the Will and that Ronald did not unduly influence his mother in making the Will. The Court found that, while Sandra may have a moral claim against her mother’s Estate, she did not have a legal one.

The reason for this decision is that people have a right to do what they want with their property after they die, a concept called “testamentary freedom.” People have a right to deal with their property any way they like, so long as it is not illegal. One colourful example is the case of Re Estate of Charles Millar, Deceased, [1938] S.C.R. 1, or “the Great Stork Derby.” In that case, Mr. Millar’s Will left his Estate to the Torontonian who could have the most number of children in the decade after his death. The Supreme Court held that, although eccentric, this clause was valid because of testamentary freedom.

Courts have been very clear in protecting testamentary freedom. In Tataryn v. Tataryn Estate, [1994] 2 SCR 807, for example, the Supreme Court affirmed that “no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will.”

The Courts refuse to intervene in cases like this, saying that the Legislature can pass a law regulating bequests if they see a need to. To date, however, only British Columbia has brought in legislation that allows the Courts to rewrite a will on moral grounds.

For example, in Jung v Poole Estate, 2021 BCSC 623, a father disinherited his estranged 34-year old twin daughters. The court found that the estrangement was not mutual, but rather driven by Mr. Poole’s “sour grapes” over losing a previous custody trail. The Court found that this was not a good enough reason to cut the daughters out of the will and ultimately awarded them each 35% of the estate.

There is no equivalent law to apply in Ontario. So, in Stewart, the court had to side with the mother who had cut out the daughter.

Earlier we noted that testamentary freedom is not unlimited. Courts have intervened to prevent bequests going to neo-Nazi organizations, and to prevent parents from cutting out children who marry outside of their faith. However, these interventions are rare in Ontario because of the fundamental importance we place on testamentary freedom and, thankfully, the number of bequests to neo-Nazi organizations is small. The more common situation where a court intervenes is where the deceased did not adequately provide for their dependants in their will. Here, the Courts have legislative authority to intervene under the Succession Law Reform Act, which provides for dependant’s relief.

What is lawful and what is moral may not always line up perfectly. In Ontario, this paradox is seen in the moral obligation to leave a bequest to one’s children acting against the legal principle of testamentary freedom. For the time being, the moral obligation, if it even exists, remains irrelevant in determining whether a parent can cut a child out of their Will.