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Nova Scotia Supreme Court: Testamentary Autonomy is a Constitutionally Protected Right & Sections of Provincial Dependant Support Legislation Held Unconstitutional

An interesting and legally fascinating development in the law of testamentary autonomy and dependant support has arisen out of the Nova Scotia case Lawen Estate v Nova Scotia (Attorney General), 2019 NSSC 162 (CanLII), http://canlii.ca/t/j0frk.  The Nova Scotia Supreme Court has found that testamentary freedom is a constitutionally protected right and as such, that sections of that province’s dependant support legislation that define “dependant” violate the Charter of Rights and Freedoms (“Charter”).

Brief Background

A father left $50,000 to two of his three adult daughters, the residue of his estate to his son and nothing to his remaining adult daughter. The three daughters brought actions pursuant to the Testators’ Family Maintenance Act, RSNS 1989, c 465 (“TFMA”) alleging that their father’s Will failed to make “adequate provision” for them (similar to a dependant support claim under Part V of the Succession Law Reform Act in Ontario).

The defendants in that action, brought a separate application seeking declarations that sections 2(b) and 3(1) of the TFMA (which define “dependant”) violate section 2(a), or, section 7 of the Charter.

They argued that the provisions should be read down to “refer only to children to whom a testator owes a legal obligation and not children to whom a testator owes a ‘moral obligation.” In other words, the TFMA should not “permit adult non-disabled children to advance court applications pursuant to the TFMA.” The applicants were granted public-interest standing by the Court which permitted them to challenge the provisions of the TFMA as public-interest litigants under s.52(1) of the Constitution Act, 1982.[1]

The Legislation 

Subsection 3(1) of the TFMA permits a judge to make an order for “adequate maintenance and support” for a “dependant” where the testator has not done so.

The definition of “dependant” is found in s. 2(b) of the TFMA and means the “widow or widower or child of a testator.” “Child” is defined as including a child lawfully adopted by the testator; a child of the testator not born at the date of death of the testator; or a child of which the testator is the natural parent. Therefore, to qualify as a “dependant” within the meaning of this definition, the applicant does not require actual dependency or need, but only need be a child, widow, or widower of the deceased.

Most dependant relief legislation across Canada has a narrower class of potential applicants and excludes adult children who are not in some form of dependency on the testator. For example, Ontario’s legislation defines a dependant as a spouse, parent, child, or sibling of the deceased “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death”. However, Nova Scotia has not amended its legislation to narrow the definition of “dependant.”[2]

In addition to the legislation, the Court noted the line of case law that has held that the obligation imposed by the TFMA rests on “moral” as well as “legal” considerations, including the case of Tataryn v Tataryn Estate, [1994] 2 SCR 807 which “confirmed that one of the pillars of dependants’ relief legislation, as traditionally framed includes a moral obligation.”Tataryn had been accepted as a good authority in interpreting the TFMA.

Justice Bodurtha first addressed the impact of the current legislation on testamentary autonomy, and observed that the issue of whether testamentary autonomy is a constitutionally protected right has not been considered by the courts.

Section 7 – Right to Life, Liberty and Security of the Person

After reviewing various Supreme Court of Canada cases[3] addressing Section 7 of the Charter, Justice Bodurtha agreed with the applicants that the right to liberty is not limited to the right, “not to be locked up in jail,” and that it “relates to individual values and how an individual orders his or her private affairs.” Further, Justice Bodurtha also agreed with the respondent, Attorney General, that s. 7 does not protect property or economic rights.

Ultimately, however, Justice Bodurtha concluded that:

[f]rom a Charter point of view, the various statements about the potential significance of testamentary autonomy, in my view, support the conclusions that 1) testamentary autonomy is not necessarily a purely economic or property matter, and 2) it can rise to the level of fundamental personal choice of the kind contemplated in the caselaw under s.7.[emphasis in original].[4]

Subsection 2(a) Principles of Fundamental Justice

Under section 2(a) of the Charter everyone has the fundamental freedom of “conscience and religion.” The applicants argued that the TFMA provisions violated freedom of conscience. The testator’s “moral decision” should be regarded as a matter of conscience. Justice Bodurtha disagreed and concluded:

Whether or not “conscience” stands apart from “religion,” this is insufficient as a basis for asserting a right under s.2(a). A violation of s.2(a) cannot simply follow from a finding that a decision is a fundamental personal choice of the kind discussed in the section 7 caselaw. At the very least, as the Attorney General argues, “conscience” must mean something analogous to religious belief. In my view, the applicants s.2(a) Charter challenge with respect to subsections 2(b) and 3(1) of the TFMA must fail.[5] 

Section 1 Analysis

Section 1 of the Charter guarantees the rights and freedoms set out in the Charter to “such limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Citing the framework set out in R v Oakes for a Section 1 analysis, Justice Bodurtha concluded that “section 7 violations are particularly difficult to justify under section1.”[6]

Demonstrable justification requires that the “objective” of the legislation be “pressing and substantial.” The Attorney General argued that the TFMA is intended to enforce testators’ moral obligations to make adequate provision for their dependants. The pressing and substantial objective, according to the Attorney General, “may be characterized as balancing the legitimate proprietary interests of his or her heirs in respect of family provision….This means 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.”[7]

However, Justice Bodurtha concluded as follows:

[N]one of this adequately demonstrates the objectives or purpose to be achieved by the legislature choosing to include non-dependant adult children with the category of potential applicants. To the extent that the Attorney General has identified a purpose or objective, it is the purpose of the legislation, as a whole. But the TFMA, as a whole, is not under attack. No one suggests that the entire Act should be struck down.

In this case, the difficulty for the Attorney General is that the objective of the specific legislative act that is impugned here – allowing a non-dependent adult child to advance a claim against an estate for “adequate provision” – rests on a moral justification. It is clear from decisions such as Sauve that, while there may be circumstances in which the courts will defer on “social policy” issues, that will not automatically be the case. Especially, on a decision to limit fundamental rights

. . . .in my view, the Attorney General has not identified any pressing and substantial objective that is served by the specific inclusion of non-dependent adult children in the class of “dependants” eligible to apply under the TFMA.[8]

Section 1 Summary

Justice Bodurtha found that if the objective of the limitation on testamentary rights is accepted as a pressing and substantial one, the TFMA provisions satisfy the other steps of the Oakes test (rational connection, minimal impairment). However, Justice Bodurtha found that the justification failed at the first step:

[T]he Attorney General has not set out a pressing and substantial objective for the specific aspect of the legislation that is under attack. The Attorney General has not identified a pressing and substantial objective to be achieved by expanding coverage under the TFMA to non-dependant adults. The section 7 violation cannot be justified under section 1 of the Charter.[9]

Justice Bodurtha decided that “reading down” the impugned provisions of the legislation was the appropriate and effective remedy for the Charter breach. The definition of “dependant” is to be read down to exclude non-dependant adult children.


According to this case, there is a right to a more absolute testamentary freedom under section 7 of the Charter. This is the first case in Canada that grants constitutional protection to testamentary autonomy. Courts have previously been reluctant to find that section 7 protects economic or property rights.  Arguably, the Nova Scotia Supreme Court may have now opened the door to an elevated testamentary autonomy, one of a “fundamental personal choice” contemplated by section 7, rather than simply a pure “economic or property matter.” It will be interesting to see what happens to this case on appeal (I would hazard a guess that an appeal would likely be heard) and too importantly, whether other provincial courts will agree that testamentary freedom is a constitutionally protected right.

[1] See the decision to grant standing: Lawen Estate v Nova Scotia (Attorney General), 2018 NSSC 188.

[2]  Lawen Estate at para 40.

[3] Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44; Gosselin v Quebec (Attorney General), 2002 SCC 84; R v Jones, [1986] 2 SCR 284; Godbout v Longueuil (City), [1997] 3 SCR 844; R v Morgentaler, [1988] 1 SCR 30; Carter v Canada (Attorney General), 2015 SCC 5; and Association of Justice Counsel v Canada (Attorney General), 2017 SCC 55.

[4] Lawen Estate at para 61.

[5] Lawen Estate at para 75

[6] Lawen Estate at para 80.

[7] Lawen Estate at para 84.

[8] Lawen Estate at paras 96-97.

[9] Lawen Estate at para 117.


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