Freedom of Testation and Family Claims in Canada

• Main Authors: Popovici, Alexandra, Smith, Lionel
• Format: Book Part
• Language: English
• Published: Oxford University Press 2020
• Subjects: Canada; First Nations
• Online Access: http://dx.doi.org/10.1093/oso/9780198850397.003.0017

The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. 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, under which courts have the discretion to grant an allowance; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. 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. Quebec law, by contrast, 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.