The Fine Line Between Testamentary Freedom and Dependant Support

In Ontario, estate planning balances two fundamental, and sometimes competing, principles: testamentary freedom and dependant support.

While testator’s generally have freedom to determine how their assets are distributed upon their death (testamentary freedom), this freedom is not absolute. It is constrained by statutory limitations designed to protect vulnerable individuals (dependants).

Understanding where the line is drawn between these two principles is critical for lawyers and clients alike, as striking the right balance supports the development of a strong estate plan and assists in mitigating the risk of conflict and litigation.

Testamentary Freedom

This principle is deeply entrenched in common law and affords testators the flexibility to tailor their estate plans to reflect personal values and family circumstances.

Because of this freedom, a testator may decide to unequally distribute their estate amongst their children, intentionally exclude certain relatives from benefitting, make a gift to one or more beneficiary’s conditional on their doing or refraining from doing certain acts, and so forth.

However, this freedom is not without limits.

Statutory Limitations

The most significant limitation on testamentary freedom is the Succession Law Reform Act (“SLRA” )¹, wherein a legal obligation is imposed on testators requiring that they adequately provide for their dependants.

The SLRA defines a dependant as a spouse, parent, child or sibling of the deceased who the “deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”²

If the court determines that an applicant was in fact a dependant of the deceased, the question then becomes whether the deceased made adequate provision for the dependant. Given the significant judicial interpretation on this point, the judiciary developed a framework to guide their assessments as to whether adequate provision of a dependant was made, focusing on the legal obligations of the deceased and the moral obligations of the deceased.

Legal & Moral Obligations

The deceased having a legal obligation to provide support may be established through demonstrating that there was an ongoing or systematic provision of money, food, shelter, and so forth, such that the deceased was sustaining the dependant prior to their death.³

A moral obligation on the other hand may be established if the deceased’s conduct contravened ‘society’s expectations of what a judicious person would do in the circumstances.’⁴

With the categories of legal and moral obligations being broad in scope, the analysis then turns to the SLRA, wherein numerous considerations are outlined to assist in establishing whether a positive legal or moral obligation existed, and if so, whether the deceased provided adequate support for the dependant.

These considerations include, but are not limited to:

• the dependant’s current assets and means;⁵
• the dependant’s capacity to contribute to his or her own support;⁶
• the dependant’s age and physical and mental health;⁷ and
• the proximity and duration of the dependant’s relationship with the deceased.⁸

Shiomi v Tocheri Estate provides an illustrative example of how the court reconciles these various considerations with the specific circumstances of the case before them.

Shiomi v Tocheri Estate⁹

The deceased (“Anna”) and the applicant (“Ronald”) had been in a common law relationship for over 50 years. They each had Will’s prepared in the 1970’s with the understanding that they were appointing one another as sole estate trustee and residual beneficiary of their respective estates. Instead, Anna named 5 charities as the residual beneficiaries of her estate, which was valued at just over $1,600,000.

Ronald brought a claim against Anna’s estate asserting that he was a dependant of Anna’s and that Anna had not made adequate provision for him in her Will. Justice J.S. Fregeau (“Fregeau”) agreed, concluding that Ronald was a dependant and that Anna had not made adequate provision for him.

Fregeau determined that Anna did not have a legal obligation to provide for Ronald, citing Ronald’s strong financial circumstances. Instead, he found that Anna had a moral obligation to adequately provide for Ronald. In reaching this determination, Fregeau considered the length of their relationship, the palliative care provided by Ronald to Anna for two years prior to her death (which allowed her to die in their home in accordance with Anna’s wishes) and that Ronald had named Anna as the residual beneficiary of his estate in accordance with what he had believed to be their mutual agreement.

Available Remedies

If the court’s assessment leads to a determination that the deceased had a legal or moral obligation to the dependant and did not make adequate provision for the dependant in their Will, the court “may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.”¹⁰

The form of the order can vary, but may, for example, include:

• periodic payments to the dependant;¹¹
• a lump sum payment to the dependant, either outright or held in trust;¹² and
• transfer or assignment of property to the dependant.¹³

This discretion enables the court to tailor an order for support to the unique facts of each case. While not so broad as to completely disregard testamentary freedom, the power extended to the judiciary to contravene a deceased’s expressed intentions clearly illustrates that there are limits to this freedom.

Returning briefly to Shiomi v Tocheri Estate, in light of Fregeau’s finding that Anna had a moral obligation to Ronald and that Anna had not made adequate provision for Ronald, Fregeau ordered that the residue of Anna’s estate be divided such that Ronald receives 50% (a lump sum) and the 5 charities Anna had named as residual beneficiaries would split the remaining 50%.¹⁴

Conclusion

While testamentary freedom remains a prominent principle in Ontario, understanding how dependant support may impact the bounds of this freedom is crucial to the execution of a well-prepared estate plan.

Loopstra Nixon’s Wealth Management and Estate Planning team works with clients to develop an estate plan that accurately reflects their intentions while simultaneously ensuring alignment with legal and moral obligations, resulting in an estate plan that our clients can have confidence in.

If you have any questions, would like more information, or want to connect, my email is rmckenzie@LN.Law.

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• ¹Succession Law Reform Act, R.S.O. 1990, c. S.26, Part V: Support of Dependants.
• ²Ibid, section 57(1).
• ³Shafman v Shafman Estate, 2023 ONSC 1391, paragraph 40.
• ⁴Ibid, paragraph 68.
• ⁵Supra note 1, section 62(1)(a).
• ⁶Ibid, section 62(1)(c).
• ⁷Ibid, section 62(1)(d).
• ⁸Ibid, section 62(1)(g).
• ⁹Shiomi v Tocheri Estate, 2025 ONSC 468.
• ¹⁰Supra note 1, section 58(1).
• ¹¹Ibid, section (63(2)(a).
• ¹²Ibid, section (63)(2)(b).
• ¹³Ibid, section (63)(2)(c).
• ¹⁴Supra note 9, paragraph 62.