In a recent decision, the Ontario Court of Appeal has confirmed that a competent testator may distribute his or her property under the terms of his or her Will as he or she sees fit, even if this means excluding independent, adult children of the testator.

The testator in the decision of Verch Estate v. Weckwerth left his entire estate to his daughter-in-law. His daughter-in-law happened to be the estranged spouse of one of his sons.

To no great surprise, that son challenged the Will on the grounds that his father, the testator, was incompetent and was subjected to undue influence, among other things.

At trial, all of the son’s challenges were rejected. On appeal, the son sought to seek relief on a separate and new ground: namely, that the testator somehow had a moral obligation to leave part of his estate to the son.

The Court of Appeal was critical of the son’s new ground for appeal, as it emanated from case law from British Columbia and involved legislation from that province “that [knew] no counterpart in Ontario”.

The Court went on to note that the son was unable to point to any “…authority in Ontario for the proposition that a competent testator’s autonomous distribution of his or her property as reflected in a properly executed Will may be displaced or set aside by the Courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children.”

As mentioned by the Court, the son did not assert any claim for a constructive trust or a claim based in quantum meruit. Consequently, one cannot help but wonder whether the result may have been different had the son asserted such claims.

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