Can You Disinherit a Child in Ontario?

Many people ask whether they can leave a child out of their will, usually because of an estrangement, a child who is already well provided for, or a child with special circumstances. The short answer is that Ontario gives you wide freedom to decide who gets your property, but that freedom has limits.

The general rule

Ontario does not have forced heirship. You are generally free to leave your property to the people you choose, and to leave someone out, including a child. A properly signed and witnessed will carries out your wishes, as long as you had the capacity to make it and were not under pressure. Our wills and powers of attorney page explains how a valid will is made.

The main limit: dependants' support claims

Part V of the Succession Law Reform Act lets a court order support from the estate for a dependant if the deceased did not make adequate provision for their proper support. Section 57 defines a dependant as the deceased's spouse, parent, child, or brother or sister, to whom the deceased was providing support or was under a legal obligation to provide support immediately before death. Section 58 lets the court make an order out of the estate, whether or not there is a will.

This means the question is not simply "is the person my child". The question is whether the child was a dependant. A young or disabled child, or an adult child who relied on you for support, may be in that position. A financially independent adult child generally is not, although each case depends on its facts. Our article on dependant support in estate disputes looks at a real case.

What the court looks at

Section 62 lists the circumstances a court must consider, including the dependant's assets, means and needs, their age and health, their capacity to support themselves, the length and closeness of the relationship, contributions they made to the deceased, any agreement between them, any gifts already made, and for a child, their education prospects and need for a stable environment. For a child of 16 or more, it also looks at whether the child has withdrawn from parental control.

Time limit

Under section 61, an application for support generally cannot be made after six months from the grant of probate or letters of administration. A family that misses this window may lose the claim, so anyone who thinks they are a dependant should get advice quickly.

Other ways a will can be challenged

• Lack of capacity. The person making the will must understand what they are doing and what they own.
• Undue influence. The will must reflect the person's own wishes, not pressure from someone else.
• Improper signing. A will that is not signed and witnessed correctly can be invalid.
• Spousal rights. A surviving spouse also has rights under the Family Law Act that a will cannot simply remove.

How to reduce the risk of a dispute

• Make a proper, current will with a lawyer instead of a do-it-yourself form.
• Think about whether anyone is a dependant. If so, consider making some provision for them.
• Keep a record that you were in good health and acting on your own wishes when you signed.
• Talk to your executor about your plans, so they are not surprised.
• Review the will after a marriage, separation, birth or other major change. See does marriage cancel your will.

Islamic wills and children

Many Muslim families want the will to follow Islamic inheritance principles. That can be done in Ontario, and the plan should also account for support claims by dependants and the rules for a valid will here. See our guide to Islamic wills in Ontario.

Spouses cannot be disinherited in the same way

A child can be left out of a will, but a surviving spouse has rights under the Family Law Act that a will cannot remove. A surviving spouse can generally choose, within six months of the death, between what the will gives them and an equalization of net family property. If the spouse does not make a choice in time, they are deemed to have chosen what the will provides. So a plan that leaves a spouse little can lead to an election and affect what is left for children.

Property that passes outside the will

Not everything follows the will. Property owned jointly with a right of survivorship passes to the surviving joint owner, and registered plans and insurance with a named beneficiary pass to that beneficiary. These can leave a child with less, or more, than the will suggests. A complete plan looks at the will and these other assets together. Part III of the Succession Law Reform Act deals with designations of beneficiaries.

Adult children who need support

A child who has a disability or who depends on you financially may count as a dependant under Part V of the Act, even as an adult, if you were supporting them or legally obliged to. Leaving them out can lead to a claim. Where a child receives disability benefits, a trust designed for that situation can provide for them without affecting benefits. See our article on Henson trusts and ODSP.

Challenges to the will itself

Whether or not a child is a dependant, a will can be challenged on grounds such as lack of capacity, undue influence, or that it was not properly signed and witnessed. Keeping a record of your reasons, such as a separate signed letter, and signing in the presence of a lawyer can help show that the will reflects your own wishes. Do not put accusations or insults in the will itself, because they can increase conflict.

Talk to us

We prepare wills, Islamic wills and powers of attorney in English, Urdu, Hindi and Punjabi. Our fees are on our cost of a will page, and our free checklist helps you prepare. Call (289) 652-0529. We do not handle probate or estate disputes.

DISCLAIMER: This article is general information about Ontario and federal law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.