Disinheritance Clause in Will Ontario: Best Practices
When creating a will in Ontario, a testator has the right to decide who receives their estate and who does not.
A disinheritance clause is a specific provision in a will that explicitly excludes a person or group of people from inheriting any part of the estate.
While Ontario law generally respects testamentary freedom, certain limitations exist that can override these clauses, especially when dependants are involved.
Disinheritance clauses are often used to exclude estranged family members or individuals the testator chooses not to benefit.
These provisions must be carefully drafted to withstand potential legal challenges.
Ontario's Succession Law Reform Act provides protections for dependants who may have been inadequately provided for, which can complicate the enforcement of disinheritance clauses.
Understanding how disinheritance clauses work, their legal boundaries, and the proper way to implement them is essential for anyone considering this option in their estate plan.
This article explores the legal foundations of disinheritance in Ontario, who can be excluded from a will, the risks of challenges, and practical considerations for creating an enforceable estate plan.
Overview of Disinheritance Clauses in Ontario
A disinheritance clause is a provision in a last will and testament that deliberately excludes someone from receiving any part of an estate.
This tool allows testators to control who benefits from their estate while making their intentions clear and legally documented.
Definition and Purpose of a Disinheritance Clause
A disinheritance clause is a written statement in a will that explicitly names a person or group of people and excludes them from inheriting any part of the estate.
The clause serves as a legal tool that shows the testator's deliberate choice to prevent certain individuals from receiving assets.
The main purpose of this clause is to ensure clarity about the testator's wishes.
Testators commonly use disinheritance clauses to exclude estranged family members or former spouses from their estate.
The clause also helps prevent confusion about whether someone was accidentally forgotten or intentionally left out.
In Ontario, these clauses provide documentation of the testator's mental capacity and decision-making process at the time of creating the will.
They can help defend against claims that someone was mistakenly omitted from the estate distribution.
Distinguishing Disinheritance from Omission
Disinheritance differs significantly from simple omission in a last will and testament.
When someone is merely omitted from a will, they are not mentioned at all in the document.
This silence can create questions about whether the testator forgot to include them or deliberately left them out.
A disinheritance clause removes this ambiguity by specifically naming the excluded person.
The clause states clearly that the testator considered this individual and made a conscious choice to exclude them.
This explicit mention creates stronger evidence of the testator's intentions.
The distinction matters because family members who are simply omitted might have stronger grounds to challenge a will.
They could argue the omission was an oversight or mistake.
A proper disinheritance clause makes such arguments much harder to sustain in court.
Importance of Explicit Language
The language used in a disinheritance clause must be direct and unambiguous.
Vague or unclear wording can lead to legal disputes and may fail to achieve the testator's goals.
The clause should name the specific person being excluded and state clearly that they will receive nothing from the estate.
Strong disinheritance language removes room for interpretation.
Phrases like "I specifically exclude" or "I intentionally disinherit" show clear intent.
The clause should identify the excluded person by their full legal name and relationship to the testator.
Courts in Ontario examine the exact wording when disputes arise.
Explicit language helps establish that the testator understood their actions and made an informed decision.
This clarity can reduce the likelihood of successful will challenges and protect the testator's wishes after death.
Legal Foundations and Limitations
Ontario law grants testators significant control over their estates, but this freedom operates within specific legal boundaries.
The Succession Law Reform Act and principles of public policy create protections that can override a person's wishes to disinherit certain individuals.
Testamentary Freedom and Its Boundaries
Ontario follows the common law principle of testamentary freedom, which allows individuals to distribute their property after death as they choose.
This means a person can generally exclude anyone from their will, including family members.
However, this freedom is not absolute.
The law balances a testator's wishes against the needs of certain protected individuals.
A will maker cannot simply disinherit anyone without considering legal consequences.
The Succession Law Reform Act sets out specific limitations on testamentary freedom.
These restrictions exist to protect vulnerable individuals who relied on the deceased for financial support.
Unlike jurisdictions with forced heirship systems, Ontario takes a more flexible approach based on dependency and need.
Statutory Protections for Dependants
The Succession Law Reform Act provides dependants with the right to apply for support from an estate, even when a will contains a disinheritance clause.
Under Part V of the Succession Law Reform Act, a "dependant" is defined more broadly than just children. Dependants include:
A spouse (both legally married and qualifying common-law partners)
A parent of the deceased
A child of the deceased (including minor children and adult children)
A sibling of the deceased
The key requirement is that the person was being supported by the deceased or had a legal right to support from the deceased immediately before the deceased's death.
This broad definition means that estates can face claims not only from spouses and children but also from parents or siblings who were financially dependent on the deceased. Testators need to be aware that excluding these individuals may still result in court-ordered support from the estate if dependency can be established.
Courts can order adequate provision from an estate when a will fails to provide for a dependant's proper support.
The court examines factors like the dependant's financial needs, the size of the estate, and the relationship between the parties.
Legally married spouses have additional protections beyond dependant support claims under the Family Law Act. A surviving married spouse may elect between what they receive under the will or their entitlement to an equalization of net family property. This election allows them to claim half the value of property acquired during the marriage. However, these equalization rights under the Family Law Act only apply to legally married spouses—not common-law partners.
Common-law spouses do not have automatic rights to equalization under the Family Law Act if they are disinherited. Their primary recourse is a dependant's support claim under Part V of the Succession Law Reform Act.
A spouse can also make a dependant support claim under the Succession Law Reform Act if the will does not provide adequate support, even when a disinheritance clause appears.
Public Policy and Grounds for Invalidity
Courts will strike down disinheritance clauses that violate public policy or promote discrimination.
A clause cannot be used to impose conditions that the law considers unreasonable or against societal values.
Clauses that include harsh or defamatory explanations for the disinheritance may create additional legal problems.
These statements can form the basis for litigation, including potential libel claims against the estate.
A poorly worded explanation might also suggest undue influence or misunderstanding, providing grounds to challenge the entire will.
The courts maintain the authority to review disinheritance decisions when they appear to conflict with fundamental legal principles or fairness.
This judicial oversight ensures that testamentary freedom does not override essential protections for vulnerable individuals.
Who Can Be Disinherited Under Ontario Law
Ontario law allows individuals to disinherit certain people in their wills, but important restrictions apply.
The law protects dependants who relied on the deceased for financial support, while other family members can typically be excluded without legal consequence.
Disinheriting a Child: Legal Process and Considerations
A person can disinherit a child in Ontario, but the Succession Law Reform Act provides protections for dependent children.
Minor children have strong legal rights to challenge disinheritance because they are presumed to need support.
Adult children with disabilities who were financially dependent on the deceased can also make claims against the estate.
Independent adult children who did not rely on the deceased for financial support face significant challenges when contesting disinheritance.
Courts generally respect a parent's decision to exclude self-sufficient adult children from their will.
The law does not require parents to treat all children equally in estate planning.
To properly disinherit a child, the will should include clear language stating the exclusion.
Some lawyers recommend adding a brief explanation (one sentence) for why the disinheritance is occurring.
This can help defend against potential challenges, though it is not legally required.
Restrictions on Disinheriting Spouses
Legally married spouses cannot be completely disinherited under Ontario law due to protections under both the Family Law Act and the Succession Law Reform Act.
The Family Law Act gives legally married spouses the right to elect between what they receive under the will or their entitlement to an equalization payment. This election allows a surviving married spouse to claim half the value of property acquired during the marriage. These equalization rights only apply to legally married spouses—not common-law partners.
Both legally married spouses and qualifying common-law spouses can make a dependant support claim under the Succession Law Reform Act if the will does not provide adequate support.
Courts consider factors like the spouse's financial situation, standard of living during the relationship, and length of the marriage or cohabitation.
These legal protections exist even when a disinheritance clause appears in the will.
Other Family Members and Non-Family Beneficiaries
Extended family members like siblings, nieces, nephews, and cousins can be disinherited without restriction in most cases.
However, the exception applies when the deceased was providing financial support to these relatives or had a legal obligation to do so.
Under Part V of the Succession Law Reform Act, a parent or sibling who was being supported by the deceased or had a legal right to support immediately before death qualifies as a "dependant." These individuals can challenge their exclusion from the will and apply to the court for support from the estate.
This means testators must consider whether they were supporting parents or siblings at the time of creating their will. If so, completely disinheriting these family members may result in successful claims against the estate.
Common-law partners cannot always be disinherited without legal consequence. Under Section 57 of the Succession Law Reform Act, a "spouse" for the purpose of dependant support includes common-law partners who cohabited for no less than three years, or who are in a relationship of some permanence and are the parents of a child. If a common-law spouse was being supported by the deceased at the time of death and meets these criteria, they are a legal "dependant" and can apply to the court for support from the estate.
Former legally married spouses who are divorced and estranged relatives who were not being financially supported can typically be disinherited without legal consequence.
Non-family members who were named in a previous will but excluded from a new one have no automatic right to challenge the change.
Friends and charitable organizations fall into this category as well.
Drafting and Implementing a Disinheritance Clause
Writing a disinheritance clause requires clear language and proper execution to ensure it holds up legally.
The clause must be explicit about who is being excluded, and the will itself must meet all formal requirements for validity in Ontario.
Best Practices for Clause Drafting
A disinheritance clause must use clear and direct language.
Simply leaving someone out of a will is not enough because courts might see this as an oversight.
The clause should name the person being disinherited specifically.
For example, a will might state: "I intentionally make no provision for my son, John Smith, in this will."
This leaves no room for confusion about the testator's intentions.
Key drafting elements include:
Explicit naming of the disinherited person
Clear statement of intent
Relationship to the testator
Confirmation that the exclusion is deliberate
The testator should have proper testamentary capacity when creating the clause.
This means they understand what they own, who might normally expect to inherit, and what the will does.
A lawyer can document capacity through detailed notes and assessments at the time of signing.
Some wills include brief explanations for the disinheritance, though this is optional.
Any explanation should be factual and avoid inflammatory language that could invite challenges.
Use of No-Contest and In Terrorem Clauses
A no-contest clause discourages beneficiaries from challenging the will.
These clauses state that anyone who contests the will loses their inheritance.
In terrorem clauses work similarly by threatening forfeiture.
However, Ontario courts view these provisions cautiously.
They will not enforce a no-contest clause if a beneficiary has legitimate grounds to challenge the will.
The effectiveness of these clauses is limited when dealing with disinherited persons who have nothing to lose.
A dependant who receives nothing can still bring a claim under the Succession Law Reform Act without triggering a no-contest clause. In fact, no-contest clauses cannot oust the jurisdiction of the court to provide for dependants under the Succession Law Reform Act. Any clause that attempts to prevent a dependant from seeking statutory support is generally void as being contrary to public policy.
These clauses work best when the disinherited person receives a small bequest.
This gives them something to lose if they contest unsuccessfully.
Executions, Witnesses, and Self-Proving Affidavits
Ontario law requires two witnesses to watch the testator sign the will.
The witnesses must be present at the same time and must also sign the document.
They cannot be beneficiaries or spouses of beneficiaries.
A self-proving affidavit is a sworn statement from the witnesses that confirms proper execution.
This document can speed up probate and reduce the chance of execution challenges.
The affidavit should be prepared by a lawyer and signed before a commissioner for taking affidavits.
Required execution elements:
Testator's signature
Two independent witnesses
All signatures on the same document
Witnesses present simultaneously
Proper execution becomes especially important when a will contains a disinheritance clause.
Any technical defect could give disinherited parties grounds to challenge the entire will in estate planning disputes.
Challenging Disinheritance Clauses and Wills
Disinheritance clauses can be challenged in Ontario courts under specific circumstances.
Family members who believe they were wrongfully excluded may contest a will based on legal grounds such as lack of capacity, undue influence, or inadequate support for dependants.
Grounds to Contest a Will
A will challenge in Ontario must be based on valid legal reasons.
The most common grounds include claims that the will maker lacked testamentary capacity when creating the will, or that someone pressured them through undue influence.
Dependants can also challenge a will under the Succession Law Reform Act.
This includes spouses (both legally married and qualifying common-law), minor children, and adult children with disabilities who relied on the deceased for financial support.
The court can order that these dependants receive adequate support from the estate, even if a disinheritance clause exists.
Other grounds for contesting a will include improper execution, fraud, or forgery.
The person challenging must prove that the will does not reflect the true wishes of the deceased.
About 1-3% of all wills are contested in court, with disinheritance cases being particularly vulnerable to challenges.
Undue Influence and Lack of Capacity
Undue influence happens when someone pressures or manipulates the will maker into changing their estate plans. The challenger must prove that this pressure directly caused the disinheritance clause.
Courts look for evidence of control, isolation, or threats that affected the person's decisions. They examine the circumstances to determine if the will maker acted freely.
Testamentary capacity means the will maker understood what they owned, who would normally inherit, and the effects of their decisions. A lack of capacity claim argues the person was too ill or confused to make valid choices.
Medical records, witness statements, and the complexity of the will serve as key evidence. These help the court decide if the will maker had the mental ability required to make a valid will.
Courts assume a will reflects genuine wishes unless proven otherwise. The burden of proof falls on the person contesting the will.
The Will Challenge Process in Ontario
The probate process starts when someone applies to validate a will. Challenges must be filed within specific time limits, which vary based on the grounds.
Starting a will challenge means filing a court application and serving notice to all affected parties. This ensures everyone with an interest in the estate is informed.
The process involves collecting evidence and obtaining medical records. Witnesses who knew the deceased may be interviewed.
Both sides present their case in court. A judge decides whether the will or disinheritance clause should stand.
Will challenges can take months or years to resolve. Legal costs can be substantial and may reduce the estate's value.
Some challenges settle through mediation before reaching trial. This can save time and money for everyone involved.
Consequences and Considerations for Estate Planning
Disinheritance clauses have significant legal and emotional consequences. Estate planning must balance testamentary freedom with practical steps to minimize disputes and protect the estate.
Risks and Implications of Disinheritance
Disinheritance creates risks that can affect an estate. Family members who feel excluded may contest the will, leading to expensive litigation that depletes estate assets.
Legal battles can delay distribution to other beneficiaries. Ontario law provides protections for dependants that can override disinheritance clauses.
The Succession Law Reform Act allows spouses (both legally married and qualifying common-law), minor children, and adult children with disabilities to claim support from the estate if they were financially dependent on the deceased. Courts may award these dependants a portion of the estate regardless of the will's instructions.
Disinheritance can also damage family relationships permanently. Excluded individuals may feel hurt or betrayed, creating rifts that affect the entire family.
The emotional toll extends beyond the disinherited person to other family members caught in the conflict. Estate disputes can create lasting divisions.
Alternatives to Disinheritance Clauses
Several estate planning tools can achieve similar goals without the harsh finality of complete disinheritance. Trusts allow control over when and how beneficiaries receive assets, which is useful when there are concerns about financial responsibility or substance abuse.
Conditional bequests provide inheritance only when specific requirements are met, such as completing education or maintaining sobriety. These conditions give beneficiaries opportunities to receive their inheritance while addressing legitimate concerns.
Reducing rather than eliminating a bequest offers another option. Leaving a modest amount to a person acknowledges the relationship while distributing the bulk of the estate according to other wishes.
This approach may reduce the likelihood of successful legal challenges. It can also help maintain family relationships.
Communicating Intent and Reducing Disputes
Clear communication before death can prevent misunderstandings and reduce conflict. Discussing estate plans with family members, when appropriate, allows the testator to explain their reasoning and set expectations.
These conversations may be difficult but often prevent surprises that lead to litigation. Open communication can make the process smoother for everyone.
Working with an experienced estate lawyer helps create documentation that supports the will if challenged. A letter of explanation kept with the will can clarify reasons for disinheritance without forming part of the legal document itself.
Regular reviews to update your will ensure it reflects current circumstances and relationships. Proper documentation of testamentary capacity at the time of signing strengthens the will against claims of undue influence or lack of mental capacity.
Medical assessments and detailed notes from the lawyer who drafted the will provide evidence that the testator understood their decisions. This can help protect the will from future challenges.
Case Law and Precedents Impacting Disinheritance
Ontario courts have shaped how disinheritance clauses work through several important decisions. These cases show when courts will uphold a parent's choice to disinherit and when they will step in to provide for dependants.
Relevant Ontario Cases and Outcomes
Ontario courts generally respect a person's right to distribute their estate as they wish. This principle, called testamentary freedom, allows parents to disinherit adult children in their wills.
However, the Succession Law Reform Act gives judges the power to change a will if dependants are not properly provided for. Courts look at several factors when someone challenges disinheritance.
They examine the relationship between the deceased and the disinherited person. They also consider whether the person was financially dependent on the deceased.
The law treats minor children and adult children differently. Minor children have stronger claims for support from an estate.
Adult children must show they were dependent on their parent to successfully challenge disinheritance. Financial dependence is a key factor in these cases.
Lessons from Spence v. BMO Trust Company
Spence v. BMO Trust Company is the leading Canadian authority on the balance between testamentary freedom and public policy when dealing with discriminatory disinheritance.
This 2016 Ontario Court of Appeal case involved an adult daughter who was disinherited after having a child with a white man. Evidence suggested the testator disapproved of this interracial relationship on racial grounds.
The "Facially Neutral" Rule: The Critical Drafting Strategy
The Court of Appeal ruled that since the will was "facially neutral"—meaning the discriminatory reason was not explicitly stated in the text of the will itself—the court would not interfere with the testator's freedom to dispose of their property as they wished.
This is the most important lesson from Spence: Absolute Silence is the key to maintaining testamentary freedom.
The reason the will in Spence was upheld is that it said nothing about why the daughter was disinherited. The will simply excluded her without explanation.
Pro Tip for Drafters: If a client includes language in the will such as "I disinherit my daughter because she married outside our race" or "I exclude my son due to his lifestyle choices that I find morally objectionable," the will fails on public policy grounds. Courts will strike down clauses that express discriminatory reasons.
However, if the will says nothing—maintaining complete silence about the reasons—the disinheritance stands. The testator's private motivations, no matter how improper, remain private and do not invalidate the will as long as those motivations are not expressed in the will document itself.
This creates a crucial drafting principle: When disinheriting someone for reasons that might be considered discriminatory or against public policy, the safest approach is to:
Name the person being excluded
State the exclusion clearly
Provide no explanation whatsoever
The Spence decision reinforces that while testators have broad freedom to distribute their estates, courts may intervene when discriminatory language appears in the will or when the disinheritance violates clearly established public policy.
The decision provides important guidance for lawyers drafting wills with disinheritance clauses: silence protects testamentary freedom, while explanation creates vulnerability to legal challenge.
Conclusion
A disinheritance clause requires careful planning and clear documentation to protect your wishes. The language must be explicit, and your reasons should be well-documented to reduce the chance of disputes.
Working with experienced legal professionals helps ensure your will stands up to scrutiny. We at B.I.G. Probate Law Ontario assist clients throughout Ontario with all aspects of estate planning, including disinheritance clauses.
Our team understands the sensitive nature of these decisions and provides guidance to protect testamentary freedom while minimizing family conflict. Clients can reach us at 289-301-3338 or via email at Info@probatelaw-ontario.ca for personalized assistance.
Our firm offers a free consultation to discuss your specific situation and answer questions about your estate planning needs. Visit probatelawgroup.ca or book a free call to speak with our knowledgeable legal team.
Proper planning today can save your estate and loved ones from costly disputes tomorrow.
Frequently Asked Questions
Disinheritance clauses raise important questions about legal rights, enforceability, and proper drafting practices. The following answers address common concerns about excluding beneficiaries from an estate in Ontario.
What is a disinheritance clause in an Ontario will?
A disinheritance clause is a statement in a will that explicitly excludes a specific person from receiving any part of the estate. It makes clear that the exclusion is intentional rather than an oversight.
People use these clauses to exclude estranged family members, former spouses, or anyone they do not wish to benefit from their estate. The clause removes any doubt about the testator's intentions.
Is a disinheritance clause enforceable in Ontario?
Disinheritance clauses are generally enforceable in Ontario. However, they are not absolute in all situations.
Ontario law allows certain people to challenge a will if they were financially dependent on the deceased. Courts can override disinheritance clauses when dependants are not adequately provided for.
Clauses that violate public policy or promote discrimination may also be struck down.
Can I disinherit my spouse or dependants in Ontario?
Ontario law limits a person's ability to completely disinherit spouses and dependants. The Succession Law Reform Act protects these individuals by allowing them to make claims against the estate.
A legally married spouse, a qualifying common-law spouse, or a dependent child can apply for support from the estate if the will does not provide adequate support.
This includes minor children and adult children with disabilities who were financially dependent on the deceased. The court will assess whether the will makes proper provision for these dependants.
What is an example of a disinheritance clause?
A simple disinheritance clause might state: "I make no provision in this will for my son, John Smith, and it is my intention that he receive no part of my estate." This language clearly identifies the excluded person and confirms the intentional nature of the exclusion.
More detailed clauses may include a brief reason for the disinheritance. However, the explanation should be kept general and short.
Do I need to explain why I am disinheriting someone?
A testator is not legally required to explain why someone is being disinherited. However, including a brief explanation may help defend against a will challenge.
When providing a reason, the statement should be general and approximately one sentence in length. Lengthy explanations or detailed accusations can create additional grounds for litigation.
A simple statement acknowledging the disinheritance was intentional is often sufficient.
How does the Succession Law Reform Act impact disinheritance clauses in wills prepared in Ontario?
The Succession Law Reform Act gives dependants the right to apply for support from an estate if the will does not provide adequate support. This right exists even when a will contains a disinheritance clause.
Under Part V of the Act, dependants include a spouse (legally married or qualifying common-law), a parent, a child, or a sibling of the deceased who was being supported by the deceased or had a legal right to support immediately before death.
The court considers factors such as the dependant's financial needs, the size of the estate, and the deceased's legal obligations.
The Act prioritizes fairness to dependants over absolute testamentary freedom, meaning that parents, siblings, and other family members who were financially dependent on the deceased can potentially make claims against the estate even if they were explicitly disinherited.
How can I reduce the risk of a challenge to a disinheritance clause?
Proper planning and documentation can reduce the likelihood of a successful challenge. A testator should ensure the will is properly executed according to Ontario's legal requirements.
Discussing the decision with affected family members in advance may help prevent disputes. However, this approach is not always appropriate.
Consulting with an estate lawyer ensures the clause is properly worded. This also helps the will comply with Ontario law.
Alternative approaches such as trusts or conditional bequests, may achieve similar goals. These options may carry less risk of conflict.
Documenting the reasons for estate planning decisions can also strengthen the will's validity.