Wills Variation Legislation allowing an independent adult child to vary a Will is found unconstitutional in Nova Scotia

In Lawen Estate v Nova Scotia (Attorney General), the Supreme Court of Nova Scotia ruled that testamentary autonomy is protected under section 7 of the Charter of Rights and Freedoms (“the Charter”). Consequently, it found that sections 2(b) and 3(1) of the Testators’ Family Maintenance Act (“the TFMA”) violated section 7 of the Charter and could not be justified under section 1.

Section 3(1) of the TFMA permits a judge to make an order for the “proper maintenance and support” of a dependant where a testator has failed to do so themselves. According to section 2(b) of the TFMA, a “dependant” is a testator’s widow or child.   This legislation is similar to s.60 of British Columbia’s Wills, Estates and Succession Act.

In this case, a testator died leaving $50,000 each to two of his three daughters and the residue of his estate to his son. The daughters argued that this was inadequate provision and applied to the court for an order to vary the will.  In response, the testator’s son and the executor of his will (“the applicants”) alleged that the TFMA provisions violated sections 7 and 2(a) of the Charter. By way of remedy, they requested that the definition of “dependant” be read down to exclude a testator’s independent adult children.

The Court addressed the applicants’ claim in four steps. First, it considered other provinces dependants’ relief legislation. Second, it contemplated whether the TFMA provisions violated sections 7 or 2(a) of the Charter. Third, after finding a section 7 violation, it determined whether the provisions were justified under section 1 of the Charter. Finally, having found no valid justification, it determined an appropriate remedy for the Charter breach.

First, the Court considered other Canadian dependants’ relief legislation. It noted that, in Manitoba, Saskatchewan, Alberta, Ontario, New Brunswick, Prince Edward Island and the Yukon and North West Territories, the relevant legislation prohibits adult children from seeking court-ordered relief unless they were actually dependent upon the testator. Furthermore, some legislation sets out what reasons are acceptable for this dependence. For example, the Alberta Wills and Succession Act states that a testator’s adult child may apply for relief, only if they are unable to earn livelihood due to disability or under certain circumstances, enrollment in full-time studies. In contrast, the Court observed that there were no explicit restrictions on the abilities of adult children to apply for relief under the relevant British Columbia, Newfoundland and Labrador, and Nova Scotia legislation.

Next, the Court contemplated whether the TFMA provisions violated the Charter. First, it considered whether the provisions violated section 7 of the Charter. This section states that “everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.  The Court held that testamentary decisions are fundamental personal choices entitled to protection under section 7. Accordingly, it found that the TFMA provisions violated section 7. Second, the Court considered whether the provisions violated section 2(a) of the Charter. Section 2(a) provides that everyone has the freedom of conscience and religion. As such, the applicants argued that the meaning of “conscience” should include a testator’s “moral decisions”. However, the Court held that “conscience” must mean something analogous to religious belief and therefore, in this instance, section 2(a) of the Charter was neither engaged nor violated.

Next, the Court considered whether the section 7 violation was justified under section 1 of the Charter. In this case, the Attorney General argued that the purpose of the legislation was to “prevent hardships and correct injustices, by balancing the legitimate proprietary interests of testators and the legitimate interests of their heirs in respect of family provision.” However, the Court found that this objective applied to the TFMA as a whole and not to the specific impugned provisions. Furthermore, it held that allowing for non-dependent adult children to advance relief claims under the TFMA was not a sufficiently pressing or substantial objective to justify an intrusion on testamentary rights. Therefore, the Court concluded that the section 7 violation was not justified under section 1 of the Charter.

Finally, the Court determined the appropriate remedy was to read down the legislation to define “dependant” to exclude financially independent adult children, with the result that a testator’s independent adult children cannot seek to vary a will.

It is anticipated that this decision will be appealed, and ultimately a matter heard by the Supreme Court of Canada.   Whether this will have an impact of BC’s will variation legislation, which presently allows an independent adult child to ask the court to vary their parent’s will, is left to be seen.