Freedom of Testation and Family Claims in Canada

This paper explores the ways in which Canadian legal orders address the tension between freedom of testation and the claims of the family of the deceased.The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. Under federal law, a different regime governs succession in relation to many members of First Nations.At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. Under those regimes, where a claimant has standing, the jurisdiction of the courts to intervene in the testator's chosen distribution is highly discretionary. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. In Quebec, by contrast, the courts and the Civil Code bear the imprint of a longstanding commitment to freedom of testation. Quebec law aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible. In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator