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Testamentary freedom is the principle that a will is only valid if the testator was, at the time of making the will, free to do as he or she wishes with respect to the disposal of his assets on death, subject to certain exceptions.  A study of the legal framework in which succession planning operates will immediately indicate that there are many possible restrictions on this freedom.  These restrictions can essentially dictate how part or all of your estate must be disposed of, regardless of your wishes.

Exceptions to this principle include, but are not limited to, creditor claims, dependent claims, taxes, executor authority or discretion, family law claims, etc.  Again, this list is not at all exhaustive. This is why it is so critical to look at all the factors and elements of a testator`s life, including family dynamics, values, assets, including those in foreign jurisdictions, debts, marital status, etc. to assess and determine how best to resolve possible competing claims against an estate while also satisfying the testator`s wishes.

Two other exceptions to testamentary freedom which warrant special attention are: testamentary incapacity and undue influence.

In Tarling v. Tarling, 2008 CanLII 38264 (ON SC), Roger Franklin Tarling (Frank) and William Tarling (William Jr.) made various claims against each other regarding their father, William McColman Tarling’s (William Sr.) estate.  William Sr. died on November 23, 2004.  The main controversy in the case surrounded the fact that prior to his death, William Sr. transferred the bulk of his assets to himself and William Jr. jointly; and William Sr. left nothing to Frank in his October 27, 2000 will (the 2000 will).  Two of the many issues that flowed from this situation are:

1. Did William Sr. have the mental state which is the legal requirement for giving instructions as to disposal of one’s assets on death, whether by will or other instrument, also known as testamentary capacity?

2. Was William Sr. unduly or improperly influenced when he transferred his assets into joint ownership with William Jr. or executed his 2000 will?

With respect to testamentary capacity, the Court observed that:

A testator must have a “sound disposing mind” to make a valid will.  This means that he or she must understand the nature and effect of a will; recollect the nature and extent of his or her property; understand the extent of what he or she is giving under the will; remember the persons that he or she might be expected to benefit under his or her will; and understand the nature of claims that may be made by persons he or she is excluding from the will (Hall v. Bennett Estate 2003 CanLII 7157 (ON CA), (2003), 64 O.R. (3d) 191 (C.A.) at para 14).

Undue influence is the term used when there are suspicious circumstances surrounding  the making and execution of a testator’s will, specifically that the testator did not freely and voluntarily make his will but rather, was influenced or pressured by one or more person’s in the context of making it.  Another way of saying this is that it involves one person taking advantage of a position of power over another person, resulting in the absence of free will to make the instructions under a will.

In the end, the Court concluded that the evidence showed that “William Sr. fully understood and appreciated the contents of his will.  He did not lack testamentary capacity.  William Sr. knew exactly what he was doing when he disinherited Frank.”  The Court further concluded that “there is no evidence of William Jr.’s involvement at the time or prior to the time that William Sr. executed the will.  Rather, the evidence is that the 2000 will was made entirely of William Sr.’s own volition and that it reflects his wishes and not anyone else’s.”

Thus, as with so many other aspects of life, one is free to plan one`s estate only as far as permitted by relevant laws, including obligations to others and one’s mental state.  It is, therefore prudent to contact a legal advisor to carefully review your situation as well as your wishes and intentions for estate plan.


Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters.  She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process.  This is quite often enlightening for her clients and facilitates individually tailored services.  If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.

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