Richard Niedermayer, TEP, Jennifer Taylor and Bhreagh Ross, summer student

There is a right to testamentary freedom under section 7 of the Charter, according to a recent decision of the Nova Scotia Supreme Court.

In Lawen Estate v Nova Scotia (Attorney General), Justice Bodurtha found two provisions of the Nova Scotia Testators’ Family Maintenance Act (“TFMA”) to be unconstitutional, to the extent they allowed non-dependent adult children to make a claim for support under the Act. This appears to be the first case in Canada granting constitutional protection for testamentary decisions. Other courts have been reluctant to find that section 7 protects economic or property rights, so this case either represents a bold new direction for section 7 – or an inappropriate expansion.

Background

Jack Lawen died in 2016, leaving four adult children behind (three daughters and one son).

In his will, which he had made in 2009, Lawen left $50,000 each to two of his daughters and the rest of his estate to his son. (It is unclear how much the residue of his estate was worth, or why he did not make provision for his third daughter.)

Lawen’s three daughters started an action under the TFMA alleging that the will failed to make adequate provision for them. Lawen’s son and the estate’s executor (Lawen’s brother) applied for declarations that certain provisions of the TFMA violated section 2(a) and/or section 7 of the Charter by giving judges the discretion to bypass testamentary decisions to permit claims from non-dependent adult children. The applicants were granted public interest standing in an earlier decision of the Court.

The provisions being challenged were the definition of “dependant” in section 2(b) of the TFMA (“the widow or widower or the child of a testator”) and section 3(1):

Order for adequate maintenance and support

3 (1) Where a testator dies without having made adequate provision in his will for the proper maintenance and support of a dependant, a judge, on application by or on behalf of the dependant, has power, in his discretion and taking into consideration all relevant circumstances of the case, to order that whatever provision the judge deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant.

Nova Scotia is one of a few provinces in Canada that allow adult children to challenge a will even if they are not in financial need or in some state of dependency on the testator.

Although a section 3(1) order would be discretionary, and not mandatory, the Court was clearly concerned about the “moral” nature of the legislation. Justice Bodurtha reviewed the history of dependants’ relief legislation across Canada and the Commonwealth, which is premised on the idea that a testator’s moral obligation to provide for their family members and equitably share the family wealth may sometimes outweigh their testamentary freedom.

Justice Bodurtha quoted from the Supreme Court’s decision in Tataryn v Tataryn Estate, where Justice McLachlin (as she then was) reviewed the BC legislation and commented:

The Act was passed at a time when men held most property. It was passed, we are told, as “the direct result of lobbying by women’s organizations with the final power given to them through women’s enfranchisement in 1916”. There is no reason to suppose that the concerns of the women’s groups who fought for this reform were confined to keeping people off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an “adequate, just and equitable” share of the family wealth on the death of the person who held it, even in the absence of demonstrated need.

While Justice Bodurtha accepted that there was some benefit to allowing a non-dependent adult child to make a claim under the TFMA, in his view this benefit did not necessarily outweigh the testator’s “freedom to dispose of their estate as they see fit.”

Section 7 protects testamentary decisions

Section 7 of the Charter protects the right to life, liberty, and security of the person. The section 7 analysis in Lawen Estate focused on the liberty interest. The issue was whether testamentary freedom could come within the scope of section 7.

Historically, the liberty interest was limited to protecting individuals from unlawful physical restraint. But section 7 jurisprudence has evolved. It is now the case that: “Liberty protects ‘the right to make fundamental personal choices free from state interference,’” as the Supreme Court stated in Carter v Canada in 2015.

In Carter, the Court found that the Criminal Code prohibition on medical assistance in dying infringed the rights to liberty and security of the person because it prevented competent adults from making the fundamental personal choice about how and when to end their life. This was also a theme of R v Morgentaler in 1988, where Justice Wilson accepted that the Criminal Code’s provisions outlawing abortions unless approved by a hospital committee infringed the right to liberty, by interfering with a pregnant person’s choice to access abortion services.

These are two prominent examples of the types of decisions that have been afforded section 7 protection (and, notably, they involve the intersection of the criminal law and health care).

The Court in Lawen Estate went beyond this territory. In a relatively brief discussion, Justice Bodurtha commented that testamentary decisions could be considered fundamental personal choices. But because of the TFMA, these decisions could be undermined by the “purely ‘moral’” claims of independent adult children. In the end, he found that testamentary autonomy is not necessarily a “purely” economic or property matter and accepted that a “testamentary decision is a fundamental personal decision that is protected under section 7.”

Justice Bodurtha did not go on to consider whether the deprivation of liberty resulting from the TFMA was in accordance with the principles of fundamental justice (this is the second part of the section 7 analysis, which operates as a built-in justification test). Typically, at this second stage, a court will consider whether the impugned law is overbroad, arbitrary, and/or grossly disproportionate to its objective. But Justice Bodurtha did not conduct this analysis; because the Attorney General did not make submissions on this issue, he inferred that the Attorney General would agree that any violation of the liberty interest would not accord with the principles of fundamental justice.

The TFMA provisions do not infringe freedom of conscience

The applicants also argued that the TFMA provisions infringed the freedom of conscience of testators. Justice Bodurtha found he did not need to determine whether freedom of religion and freedom of conscience are distinct concepts under section 2(a) (Justice Wilson in Morgentaler thought they were). The applicants’ argument that a “testator’s ‘moral decision’ should be regarded as a matter of conscience” was insufficient to prove a breach of section 2(a).

The section 7 violation could not be justified under section 1

Section 7 violations are, as the Court recognized, “particularly difficult to justify” as “reasonable limits” under section 1 of the Charter (however, that is usually because a court has already found the impugned law to be inconsistent with the principles of fundamental justice).

The TFMA provisions failed at the first stage of the Oakes test, which is unusual in Charter jurisprudence. The Province had characterized the “pressing and substantial objective” as “balancing the importance of a testator’s will with that of ensuring that the financial needs of spouses and children of testators are adequately met.” However, Justice Bodurtha found that this formulation did not really explain why the TFMA had to “include non-dependent adult children within the category of potential applicants.” He was concerned, again, about the moral nature of this justification.

Disagreement with the legislature’s policy choice (here, to permit incursions into testamentary autonomy in some circumstances) is not usually sufficient to find a Charter violation, but in Lawen Estate the Court’s views about testamentary autonomy, and concerns about the “moral” nature of family provision, certainly permeated the Charter analysis.

Non-dependent adult children can no longer make a claim under the TFMA

Unlike many other Canadian provinces, in Nova Scotia, a dependant was not required to establish actual dependency or need to make a claim – they just needed to be a child, widow, or widower of the testator. That is no longer the case, after Lawen Estate. Finding the TFMA provisions violated section 7 of the Charter and could not be justified under section 1, Justice Bodurtha applied section 52 of the Constitution Act, 1982 to read down the provisions to exclude non-dependent adult children from the definition of “dependant.”

There was no temporary suspension of the declaration, so the definition of “dependant” in the TFMA must now be interpreted as excluding non-dependent adult children.

Estate planners may be able to work around the TFMA

It remains to be seen whether the Province will appeal this decision.

In the meantime, prudent estate planners with clients who wish to make unequal provision for their adult non-dependent children would be well advised to continue using planning structures that avoid the application of the TFMA altogether, such as inter vivos trusts. Justice Bodurtha did not discuss the use of such trusts as a means to avoid the Act (which only applies to assets that pass through a testator’s will). It has been, and will remain, possible to avoid the application of the Act in relation to both non-dependent, and even factually dependent, children by using an alternative succession structure such as a trust or beneficiary designation.

If left to stand, this decision will have significant practical effect on many plans going forward where the use of trusts is too difficult, costly, or complex. It will also ripple through the other jurisdictions in Canada that enforce a similar regime for adult non-dependent children (British Columbia, for example). Stay tuned for more from the courts on this issue.

This update is intended for general information only. If you have questions about the above, please contact a member of our Estates & Trusts group.

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