While Ontario is generally a ‘testamentary freedom’ jurisdiction, there are clear limits on your obligations to ‘cut someone out of your estate’. Specifically, your estate plan must take into account your obligation to support your dependents.
In Ontario, anyone who was dependent on the deceased can made a claim against the estate for support separate and apart from what the dependent might inherit (under the Will or under the laws of intestacy). When successful these are claims for support, not inheritance, and the estate must pay the support before the remainder of the estate is divided among the beneficiaries of the estate.
For a claim to be made, it has to be shown that the deceased has been providing support immediately before death, or the deceased has been under a legal obligation to provide support.
Dependents in the following categories can make a dependent’s claim against the estate of the deceased under the Succession Law Reform Act:
In this context, “spouse” includes married and common law spouses (not married spouses who have cohabited for no less than 3 years).
Children include grandchildren and any person who the deceased demonstrated a settle intention to treat as a child.
Of particular importance is that these claims can be made against a wide range of assets that were controlled by the deceased immediately prior to their death, and not just the assets which ‘fall into the estate’. For instance, life insurance and investment plans that pass by beneficiary designation (TFSA, RRSP, RRIF) can be caught by the court. Accordingly, a testator cannot avoid their dependent support obligations simply by using beneficiary designations to ensure assets do not fall in to their estate.