Q: I have been told that a person cannot leave an estate to anyone but direct family. Is this correct? I would like to leave property to a nephew.
A: A person can dispose of his or her property by will in any way that one chooses, subject to three limitations. First, he can only leave property to which he is legally entitled. Second, the person must make adequate provision for the surviving spouse and children. Finally, a person cannot leave a gift that is illegal or offends public policy.
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It may seem obvious that one can’t leave property that isn’t owned. However, due to the effect of matrimonial property legislation, even though property is in one spouse’s name, the other spouse may have an interest in it.
For example, John and Petra have built a four section farm from scratch in the last 30 years. The land is in John’s name. John would not be free to leave the land as he wished. Petra would have a half interest in the land, and upon John’s death, could seek a court declaration that she is half owner.
Second, a testator must make adequate provision for dependents. The wording varies in each province but the intent is the same. For example, British Columbia’s law provides that the testator must “make adequate provision for the proper maintenance and support of a surviving spouse and children.”
Saskatchewan’s law allows dependants to make claims for “reasonable maintenance” and defines dependents as including the spouse, children under 18, children over 18 who are mentally or physically unable to make a living and children over 18 who because of “need or other circumstances … ought to receive a greater share of the deceased’s estate.”
One of the leading cases on what constitutes
adequate provision is the 1994 Supreme Court case, Tataryn vs. Tataryn. Through hard work the Ts had accumulated an estate of some $315,000, almost all in the husband’s name.
They had two adult sons. The father disliked his older son and believed that his wife and oldest son disrupted family harmony. Therefore, he left the family home to the wife for life, after which it was to go to the youngest son. The balance of the estate he also left to his youngest son with the stipulation that the son, in his sole discretion, provide income to the mother while she was alive.
The will was challenged. The Supreme Court said that adequate support was more than simply keeping people off welfare or meeting their basic needs. The court said that when a will is challenged by a dependent, not only must the court look at needs but also at moral considerations and what are reasonable expectations by society.
The court awarded the home to the wife, and a life interest in the rental house and everything else to her. Upon her death, the rental home was to be divided one-third to the oldest son and two-thirds to the youngest. Each of the boys was also to receive an immediate $10,000 gift.
Finally, a will cannot make a gift that would be
illegal. A will that left $100,000 to anyone who breached the gun control law would be illegal because it encourages people to break the law.
In the Leonard estate, an educational trust provided that its benefits could not be paid to those “who are not Christians of the white race,” or of British nationality or British parentage. The provision was declared void as offending public policy.
However, in the McConnell estate, a B.C. court upheld a scholarship for a “practising Roman Catholic student in the third or fourth year of
education” and a bursary for a “music to be given to a Roman Catholic student preferably interested in the liturgy of the Roman Catholic church.”
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
