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Who Is Next? Will Other Provinces with Similar Wording As The Nova Scotia Legislation Follow Suit

Testamentary freedom refers to the concept where a person, in making their will, has free reign in deciding what to do with his or her property upon death.  In Ontario, testators generally have the right to decide how to distribute their property freely. However, two Ontario statutes may circumscribe testamentary freedom:

(1) Part V of the Succession Law Reform Act[1]  (dependant support), and

(2) Part I of the Family Law Act[2] (property rights of legal spouses).

Testamentary freedom can also be limited by the doctrine of public policy which can void a bequest that is in violation of public policy.[3]

All the provinces and territories of Canada have some form of dependants’ support legislation, which limits a testator’s testamentary freedom to a certain extent, however, the wording of the legislation is not identical as to who constitutes a dependant, the Court’s discretion in making the award and the quantum thereof and the threshold language used for when a support payment will be ordered. Therefore, this may lead to different results depending on the province in which the claim is brought.

Most provincial statutes have limited the definition of “dependant” to exclude an adult independent child or have limited dependant support relief claims to cases where the testator has a legal obligation to provide support or to the dependant’s financial need of such support. [4]

WEL Partners has in its book on Dependant’s Support in Chapter 2 explores the various dependant’s support legislation across Canada, and discusses the important similarities and differences that may exist. This chapter can be found online at page 13 at: http://welpartners.com/resources/WEL-on-dependants-support.pdf.

The Supreme Court of Canada in examining the interests protected by “dependant support” legislation in the context of the British Columbia Wills Variation Act in Tataryn v. Tataryn Estate,[5] held:

“…The desire of the legislators who conceived and passed it was to “ameliorat[e]     …  social conditions within the Province”.  At a minimum this meant preventing those left behind from becoming a charge on the state.  But the debates may also be seen as foreshadowing more modern concepts of equality.  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.

The other interest protected by the Act is testamentary autonomy.  The Act did not remove the right of the legal owner of property to dispose of it upon death.  Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.”

The (“Tataryn“) case and the Ontario Court of Appeal in Cummings v. Cummings (“Cummings“)[6] affirmed that moral considerations are a relevant factor for courts to consider in dependant support claims. Tataryn articulated a two-stage test which focuses first on legal duties and then second on moral duties that the deceased owed to the dependant applicant. Meanwhile, Cummings affirmed that moral considerations are a relevant factor for courts to consider in dependants’ support claims. In short, when examining all of the circumstances of an application for dependant’s support, the court must consider:

  1. What legal obligations would have been imposed on the deceased had the question of provision of support arisen during his lifetime; and
  2. What moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances?

In Ontario a dependant is defined in s 57 of the SLRA as: a Spouse, Ex-spouse, Common-law partner who cohabited continuously for 3 years, or in a relationship of some permanence if they are the natural or adoptive parents of a child, Parent, grandparent, sibling, child or grandchild.

All of the above must be someone to whom the deceased was under a legal obligation to provide support immediately before death.

Ontario Courts refer to the two-part test in the SLRA to determine who qualifies and meets the test of a “dependant” as set out in s. 57 of the SLRA. The first part of the test determines whether individual falls under the category of a dependant and the second part of the test looks at whether the deceased, immediately before death, was providing, or had a legal obligation to provide support to the Dependant. An application for dependant support will not pass the second part of the test on the basis of a moral obligation in the absence of the existence of a legal obligation to support.

This was confirmed in the Ontario Court of Appeal case Verch Estate v. Weckwerth[7], where the court pointed out the appellants cited no grounds to support their claim that a properly executed will may be set aside by the court pursuant to “some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children.”

There has always been a tension in the law about the scope of a person’s “moral” obligations. In particular, does a person have a moral obligation to provide financially for an independent adult child? Even if such a moral obligation exists, in what circumstances should a judge enforce it?

In Nova Scotia, the legislation is broad enough to include adult independent children’s ability to bring a dependant support application on moral grounds.

Section 2(b) of Nova Scotia’s Testators’ Family Maintenance Act[8]  (the “TFMA”) defines a “dependant” as follows: “the widow or widower or the child of a testator.”[1]. Furthermore, the Act did not have a needs-based test, any child of the deceased is entitled to apply to the court for support out of the deceased’s estate, regardless of actual dependency or need.

Section 3 (1) of the Act[9] states that “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.”

In 2016, the Supreme Court of Nova Scotia in the case of Irving v. Irving Estate, [10] summarized dependants’ support law in that province:

“The issue of adequate provision for family members in a testator’s will has been judicially considered on many occasions over the past number of years. Cases submitted by counsel and considered include: Zwicker Estate v. Garrett [1976] N.S.J. 20 (NSCA); Tataryn V. vs. Tataryn Estate 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807; David v. Beals Estate 2015 NSSC 288 (CanLII). These authorities and cases referred to therein establish that:

  1. Testators have the absolute freedom to dispose of their property in a manner they choose subject to any statutory limitations.
  2. The court should not, except in clear and definite cases, prevent testators from disposing of their estates as they please. In this regard an applicant bears the civil burden of proof on a balance of probabilities.
  3. No one factor listed in section 5(1) of the Act[11] is to be looked at in isolation. The court must look at all relevant facts and surrounding circumstances to determine whether a testator breached a moral duty to make adequate provision for an adult child.
  4. The imposition of a moral duty does not require that all family members be treated equally.”

Brief Background

In Irving the testator left $1,000.00 bequest to one of her children (the applicant) and the residue of her estate (approx. $100,000.00) to be split among her remaining four children. The applicant was self-sufficient, he owned his own home, he had unilaterally ceased contact with his family, had been out of their lives since 2001, and did not offer comfort or support to his dying parents despite being requested to do so. The Court dismissed the applicant’s claim as he did not establish relevant circumstances which could allow the Court to intervene and deviate from the testator’s expressed intentions.

Recent Decision of the Nova Scotia Supreme Court

Recently the case of Lawen Estate v Nova Scotia (Attorney General)[12], the facts of which have been summarised in the article above, the Court held that the testators right to absolute freedom to dispose of their property is a constitutionally protected right, when 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 it may well be overturned on appeal.

Who is next?

This decision could have an impact on other provinces with similar wording as the Nova Scotia legislation – such as New Brunswick, Newfoundland and Labrador and British Columbia – as they might also become faced with applications arguing the constitutionality of legislative provisions that provide for the maintenance of independent adult children or even question the constitutionality of Dependant’s relief legislation backed up by the argument of freedom of testation as a constitutionally protected right in terms of Section 7 of the Charter.

As at the date this article was written, the timeline for an appeal application has not expired. It will be very interesting to see if the decision will be appealed to the Court of Appeal and whether the Court will share the same view as the trial judge.

[1] Succession Law Reform Act, RSO 1990, c S.26

[2] Family Law Act, R.S.O. 1990, c. F.3

[3] Canada Trust Co. v. Ontario Human Rights Commission (C.A.), 1990 CanLII 6849 (ON CA), McCorkill v. McCorkill Estate, 2014 NBQB 148

[4] Alberta legislation: Wills and Succession Act, SA 2010, c-W 12.2, Part 5, s88, Manitoba Legislation: Dependants Relief Act, CCSM c D37, s2(1), Northwest Territories legislation: Dependants Relief Act, RSNWT 1988, c D-4, S2(1), Nunuvat legislation: Dependants Relief Act, RSNWT (Nu) 1988, c D-4, s2(1), Ontario legislation: Succession Law Reform Act, RSO 1990 c S 26, Part V,s 57-62, Prince Edward Island legislation;  Dependants of a Deceased Person Relief Act, RS PEI 1988, c D-7, s2, Civil Code of Quebec-Articles 684- 685, Saskachewan legislation: The Dependants’ Relief Act, 1996, SS 1996 c D-25.01, s 6(1),Yukon Territories legislation: Dependants Relief Act, RSY 2002, c 56, s2.

[5] Tataryn v. Tataryn Estate, [1994] 2 SCR 807 at page 816

[6] Cummings v. Cummings, (2003) 5 E.T.R (3d) 81 (Ont. S.C.J,), (2003) O.J. No. 601 (Ont. S.C.J.); affirmed (2004)69 O.R (3d) 398 (Ont. CA), (2004) O.J. No. 90 (Ont. CA).

[7]  Verch Estate v. Weckwerth 2014 ONCA 338

[8] RSNS 1989, c 465

[9] Testators’ Family Maintenance Act, RSNS 1989, c 465

[10] Irving v. Irving Estate, 2016 NSSC 188.

[11]Testators’ Family Maintenance Act, RSNS 1989, c 465, Section 5 (1)

Upon the hearing of an application made by or on behalf of a dependant under subsection (1) of Section 3, the judge shall inquire into and consider all matters that should be fairly taken into account in deciding upon the application including, without limiting the generality of the foregoing,

(a) whether the character or conduct of the dependant is such as should disentitle the dependant to the benefit of an order under this Act;

(b) whether the dependant is likely to become possessed of or entitled to any other provision for his maintenance and support;

(c) the relations of the dependant and the testator at the time of his death;

(d) the financial circumstances of the dependant;

(e) the claims which any other dependant has upon the estate;

(f) any provision which the testator while living has made for the dependant and for any other dependant;

(g) any services rendered by the dependant to the testator;

(h) any sum of money or any property provided by the dependant for the testator for the purpose of providing a home or assisting in any business or occupation or for maintenance or medical or hospital expenses.

[12] lawen estate v nova scotia (attorney general), 2019 nssc 162

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