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How the United States Shows Us the Potential Consequences of Holding Testamentary Autonomy to be a Fundamental Right

Lawen Estate v. Nova Scotia (Attorney General), a recent decision of the Nova Scotia Supreme Court, held that certain provisions contained within Nova Scotia’s Testators’ Family Maintenance Act (“TFMA”)[1] violated Section 7 of the Constitution Act, 1982 (the Charter) because testamentary autonomy is a fundamental right protected by Section 7 of the Charter.[2]

The Case

In Lawen, the deceased, Jack Lawen, left a $50,000 legacy to two of his three daughters and the residue to his son. Lawen’s three daughters commenced an action pursuant to the TFMA, claiming that Lawen’s will failed to provide them with adequate provision. Lawen’s son brought an application seeking a declaration that sections 2(b) and 3(1) of the TFMA violated Section 7 of Charter. Sections 2(b) and 3(1) of the TFMA read as follows:

2 In this Act, [….] (b) “dependant” means the widow or widower or the child of a testator; [“child” includes a child: lawfully adopted by the testator, of the testator not born at the date of the death of the testator, of which the testator is the natural parent]

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.

Accordingly, Section 7 of the Charter reads as follows:

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 the “liberty” protected by Section 7 includes an individual’s right to make decisions of fundamental importance and furthermore concluded that testamentary autonomy qualified as a “fundamental personal choice” eligible for Charter protection under Section 7. The court found that to allow an adult independent child to bring a claim for dependent support violated a testator’s Section 7 rights. Accordingly, the court read down relevant portions of the Act held to be unconstitutional thus preventing independent adult children from being able to bring a claim for support under the TFMA.

What is Testamentary Autonomy?

Testamentary autonomy, often referred to as testamentary freedom, is the basic principle that affords testators with the absolute right to dispose of their property at death in any manner of their choosing. Historically, testators were provided with unfettered discretion to dispose of their property.

The model law that prevails in the provinces of Canada does not concern any such individually vested rights of inheritance.[3] Rather, no one is entitled to receive anything under a testator’s will unless legislation says otherwise.[4] Accordingly, Canadian legislation and jurisprudence have recognized that if a deceased had sufficient assets at the time of his or her death, the deceased rather than the state should be responsible for providing continued support to his or her dependants.

Legislation such as the TFMA and the Succession Law Reform Act[5] here in Ontario have been introduced in part, to restrain a testator’s testamentary autonomy in favor of dependants whom the testator was legally obligated to support immediately prior to death. This legislation has codified specific obligations owed by a testator that remain unfulfilled at his or her death. This renders the principle of testamentary autonomy a more “elastic” concept liberally interpreted on a case-by-case basis by way of judicial discretion.[6]

Furthermore, In Tataryn v. Tataryn, the Supreme Court of Canada restricted testamentary autonomy by recognizing and enforcing a testator’s moral obligation to provide support. This broadened the court’s discretion to recognize and enforce obligations that were not legally enforceable on the testator prior to death. [7]

A Lesson to Be Learned From the United States of America

In the Lawen decision, the court recognized that the broad language of sections 2(b) and 3(1) of the TFMA permitted those who are non-dependant adult children to bring a claim under the legislation. However, the TFMA also permits the court to use its discretion in deciding whether a claim should succeed given the circumstances. The court, rather than exercising its discretion and denying the claim for support, treaded into dangerous waters by declaring testamentary autonomy to be a fundamental right protected by the charter.

The United States has long wrestled with the prioritization of testamentary autonomy over provision for a testator’s family and dependants. To this day, many jurisdictions permit a testator to totally disinherit his or her minor children and dependants in favor of the freedom to distribute wealth as he or she sees fit. There is little in the way of legislative protection against such disinheritance, which is a clear indication of the value that the United States places on Testamentary Freedom.[8]

The Supreme Court of the United States has held the ability to transmit property at death to be a constitutionally protected right.[9] Accordingly, legislation and jurisprudence have continued to recognize that “[t]he organizing principle of the American law of donative transfers is freedom of disposition, and as such, property owners have the nearly unrestricted right to dispose of their property as they please.”[10]

Furthermore, state courts have held that “[a] basic principle underlying any discussion of the law of wills is that an individual has the right and the freedom to dispose of his or her property, upon death, according to the dictates of his or her own desires.”[11]

Except for a few states, the probate laws of the United States permit the disinheritance of dependants.[12] Thus, under the common law, the obligation to support a dependent ends at the death of the testator/obligor.[13] Few states such as California, Montana, North Dakota and South Dakota have enacted legislation that states that a parent’s estate must provide for any child would otherwise become a public charge if the parent while alive was obliged to support the child.[14]

However, by and large, the United States has rejected the evolution experienced by most other common law jurisdictions that have sought to protect a deceased’s dependants by limiting testamentary autonomy. 

Why Does This Matter?

The United States provides an extreme example of how testamentary autonomy has been bolstered in a way that offers a testator nearly unrestricted freedom to dispose of his or her property free of any obligation owed to dependants. The Lawen decision does not suggest such an extreme departure from support legislation but creates a platform that may inspire future decisions to depart from legislation that has been designed to protect those who depend upon a testator for support.

Whether such a vast departure from common law and legislation will stand remains to be seen. We can only hope that courts will proceed with caution as to avoid being pinned against the Charter in such cases where testamentary autonomy ought to be limited in favor of those who depend upon a testator for support.

[1] R.S.N.S. 1989, c. 465.

[2] Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162 [Lawen].

[3] Albert H. Oosterhoff, Oosterhoff on Wills, 8th edition (Thomson Reuters, 2016) at 849.

[4] Re Spencer Estate, 2016 ONCA 196 at para 32.

[5] Succession Law Reform Act, RSO 1990 c. S.28.

[6] Oosterhoff, supra note 3 at 851.

[7] Tataryn v Tataryn, [1994] 2 SCR 807.

[8] Ralph C. Brashier, Protecting the Child From Disinheritance: Must Louisiana Stand Alone?, 57 LA. L. Rev. 1, 1 (1996).

[9] Hodel v. Irving, 481 U.S. 704, 716 (1987).

[10] Restatement (Third) of Prop.: Wills and Other Donative Transfers §10.1 (AM. LAW INST. 2003).

[11] Matter of Hastings’ Est., 567 P.2d 200 (Wash. 1977).

[12] Brashier, supra note 6.

[13] McKamey v. Watkins, 273 N.E.2d 542, 542 (Ind. 1971).

[14] Adam J. Hirsch, Freedom of Testation / Freedom of Contract, 95 MNLR 2180, 2253.


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