Nova Scotia Court of Appeal Allows Appeal in Lawen Estate

Both Nova Scotia and British Columbia allow independent adult children to apply to court to vary their parents’ wills. Although other provinces in Canada have legislation allowing spouses, minor and dependent children to apply for dependant’s relief on the death of a spouse or parent who has provided little or no inheritance, the provisions allowing independent adult children to apply are not common.

British Columbia has had this legislation under various titles for over 100 years now. The Supreme Court of Canada has decided cases and outlined principles that are to applied to claims made under British Columbia’s legislation, including claims by independent adult children. The most recent Supreme Court of Canada decision is Tataryn v. Tataryn Estate, [1994] 2 SCR 807. I was a bit surprised when Justice Bodurtha of the Supreme Court of Nova Scotia held in Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162 (CanLii) that Nova Scotia’s Testator Family Maintenance Act offends section 7 of the Charter of Rights and Freedoms insofar as it permits non-dependant adult children to apply of vary their parents’ wills. Section 7 of the Charter says:

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 found that to the extent that the legislation interfered with the testamentary autonomy of the will-maker in respect of independent adult children, it violates the constitutional right to liberty. The Court read down the legislation so that it would not apply to non-dependant adult children.

The Nova Scotia Court of Appeal in Nova Scotia (Attorney General) v. Lawen Estate, 2021 NSCA 39 (CanLii) disagreed. On appeal by the Attorney General of Nova Scotia, the Court allowed the appeal. Justice Farrar, writing for the Court, held that there was an insufficient evidentiary basis to find that the legislation violated section 7 of the Charter:

[52]         In this case, there was no evidence put before the application judge to establish an engagement with matters critical to a testator’s dignity and autonomy.  Nor was there any evidence indicating why – from a public interest perspective – testamentary capacity was a pressing issue, that testators’ wishes were being arbitrarily ignored, or that testamentary autonomy to preclude a non-dependent adult child engaged the liberty interests of an individual.  There was no consideration of whether s. 5 of the Act, which outlines the factors to be taken into account when considering a claim of a dependent, safeguarded a testator’s autonomy.

[53]         The application judge did not consider, even if a breach of s. 7 was made out, whether it was in accordance with principles of fundamental justice.  He inferred that the AGNS accepted if a violation of the liberty interest was found it would not be in accordance with principles of fundamental justice (¶62).  The AGNS did not make any such concession.  It was incumbent upon the application judge to undertake this crucial aspect of the constitutional analysis.

[54]         The application judge did refer to Tataryn Estate, supra, where McLachlin, J., explained that the purpose of the Act was to ameliorate circumstances of women and children at the time when men held most of the property, to ensure that women and children would receive an adequate, just and equitable share of the family wealth on the death of the person who held it, even in circumstances where they were not able to demonstrate need (Tataryn Estate, ¶ 16, cited at ¶ 19 herein).  However, he did no analysis nor did he make any finding as to whether the objects of the Act were in compliance with the principles of fundamental justice.

[55]         There was no finding that the impugned provisions caused harm, that they were arbitrary, overbroad or grossly disproportionate to the objectives of the legislation.  All of which would have been necessary to anchor a breach of s. 7.

There are no reported decisions in British Columbia at the time of writing this post that have ruled on the question of whether our legislation is constitutional. Nor has the Supreme Court of Canada considered this issue. Neither the Supreme Court of Nova Scotia decision or the Nova Scotia Court of Appeal decision is technically binding on a British Columbia court, but a judge in B.C. could find the reasoning persuasive and apply it here.