Keith Masterman
A will is a cornerstone of an estate plan, and careful planning is required before drafting one. During that planning process, it’s important to consider any restraint on testamentary freedom. Restraints may be legislative, based on public policy or a result of contractual duties.
Legislative restraint
An example of legislative restraint is Ontario’s Family Law Act, which allows a surviving spouse to choose between the benefits left in the deceased’s will or a right to a family property division, which would’ve been available had the marriage ended in divorce or separation.
Another example is British Columbia’s Wills, Estates and Succession Act, which allows a court to vary a will if, in the court’s opinion, the will doesn’t adequately provide for the deceased’s spouse or children.