Wills Variation: An Unjustified Infringement on Testamentary Autonomy?

September 10, 2019 | Sarah Fitzpatrick

In Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162 (“Lawen”), the Nova Scotia Supreme Court found that the Nova Scotia dependants’ relief legislation violated s. 7 of Canada’s Charter of Rights and Freedoms (the “Charter”). Dependants’ relief, or wills variation, legislation allows a testator’s spouse and children to apply for a court order to vary the terms of the will on the basis that it did not provide adequate maintenance and support for them.

The testator, Jack Lawen, had four children: three daughters and a son. In his will, Mr. Lawen left two of his daughters gifts of $50,000 each and the remainder of his estate to his son. His daughters commenced a dependant’s relief action. In response, Mr. Lawen’s executor and his son brought an application for a declaration that certain sections of the Testator’s Family Maintenance Act (Nova Scotia) (“TFMA”) that permit claims by independent adult children violated Mr. Lawen’s Charter rights to freedom of conscience and religion (s. 2(a)) and to life, liberty and security of property (s. 7).

In the TFMA, a dependant who can bring an application to vary the terms of the will is the testator’s widow or widower or child. Child is further defined in a manner that includes adult children.

The case law interpreting the TFMA has adopted the Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, [1994] 2 SCR 807, which established that the court will consider both the testator’s legal obligations during their lifetime and moral obligations when determining whether adequate maintenance and support was made. In the case of an independent adult child, the testator will owe a moral obligation to make provision for them, depending on the size of the estate and absent any circumstances that may negate the obligation. While some provinces have restricted the class of adult children who can bring a dependants’ relief claim by legislation, the TFMA permits any adult children to make a claim, without any requirement for them to demonstrate dependency or financial need.

Right to Life, Liberty and Security of the Person

Section 7 of the Charter protects the right to life, liberty and security of the person. The right to liberty includes decisional autonomy for decisions that affect physical liberty, human dignity, individual autonomy and privacy.

The Court in Lawen found that testamentary autonomy, the ability of the testator to dispose of his property as he wishes, was a fundamental personal choice that is protected by s. 7. It is a choice that is more than simply an expression of economic or financial interest, and involves a moral choice that is important to the testator’s dignity and autonomy.

As the TFMA restricts the testator’s testamentary autonomy, it infringes s. 7 of the Charter.

Right to Freedom of Conscience and Religion

Section 2(a) of the Charter provides that everyone has the freedom of conscience and religion. The applicants argued that the testator’s moral decision of how to dispose of his property should be regarded as a matter of conscience. However, the Court found that testamentary autonomy was not protected under s. 2(a) of the Charter.

Infringement Not Justified Under Section 1

Where a Charter right has been infringed, the infringement may be permitted as a reasonable limit on the right under s. 1 of the Charter. This requires determining whether there is a pressing and substantial objective for the limitation and whether the means for the limitation are proportional. The Attorney General argued that the purpose of the TFMA was “to prevent hardships and correct injustices, by balancing the legitimate proprietary interest of testators and the legitimate interests of their heirs in respect of family provision”.  The Court, however, found that there was no pressing and substantial objective achieved by limiting testamentary autonomy by permitting non-dependent adult children to make a dependant’s relief claim. As there was no pressing and substantial objective, the Court also found that the remaining elements of the s. 1 analysis were not met.

The Court concluded by declaring that sections 2(b) and 3(1) of the TFMA are inconsistent with the Constitution of Canada and are of no force and effect to the extent that dependants includes non-dependent adult children. Those sections of the TFMA will be read down to exclude non-dependent adult children and, as a result, non-dependent adult children can no longer bring a dependants’ relief claim under the TFMA.

While it is anticipated that the Attorney General will appeal this decision, no appeal has been filed yet. If the decision is not appealed or is upheld on appeal, it could have implications in other provinces if the same reasoning is adopted, particularly in British Columbia where the wills variation provisions are similar to the TFMA and wills variation claims by non-dependent adult children are frequently made.


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