A novel estate case recently came out of Nova Scotia, in which a judge declared that there is a right to testamentary freedom under section 7 of the Charter of Rights and Freedoms.
The deceased lived in Halifax, Nova Scotia. He had a wife and four children: three daughters and a son, all now adults.
The deceased made a will in 2009. He owned several residential income-producing properties in Halifax. He passed away in 2016 and pursuant to the will left $50,000 each to two of his daughters and the residue of his estate to his son.
The deceased’s brother was named in the will as one of his executors. On May 12, 2016, probate was granted to the brother as the sole executor, the other named executor having renounced.
The deceased’s three daughters commenced two actions in the Supreme Court of Nova Scotia after probate was granted.
The second action was brought pursuant to the Testators’ Family Maintenance Act (the “TFMA”). The daughters alleged that their father’s will failed to make adequate provisions for them.
In response, the brother, acting for the estate, brought an application seeking declarations that sections 2(b) and 3(1) of the TFMA violated section 2(a) or section 7 of the Charter of Rights and Freedoms (the “Charter”).
The brother argued that these TFMA 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 applications pursuant to the TFMA.”
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:
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.
The definitions of “child” and “dependant” appear at s. 2 of the TFMA, which provides, in part:
2 In this Act,
(a) “child” includes a child
(i) lawfully adopted by the testator,
(ii) of the testator not born at the date of the death of the testator,
(iii) of which the testator is the natural parent;
(b) “dependant” means the widow or widower or the child of a testator…
To be a “dependant” within the meaning of the definition does not require actual dependency or need. One need only be a child, widow, or widower of the testator.
Section 2(a) of the Charter states:
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
Finally, s. 7 of the Charter reads:
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 cited a line of caselaw which holds that the obligation imposed by the TFMA rests on moral as well as on legal considerations.
After reviewing dependants’ relief legislation across Canada, the court stated that: “There is no dispute that dependants’ relief legislation such as the TFMA detracts from testamentary autonomy.”
However, the court observed that the issue of whether testamentary autonomy is a constitutionally protected right has never been considered by the courts. After reviewing Charter principles, the court stated:
“From 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.”
While the court found that the brother’s argument that a “testator’s ‘moral decision’ should be regarded as a matter of conscience” was insufficient to prove a breach of s. 2(a) of the Charter, the court did find that it violated s.7 and could not be justified under s. 1 of the Charter.
As a result, the court declared that sections 2(b) and 3(1) of the TFMA infringed upon testamentary autonomy and violated the right to liberty guaranteed by s. 7 of the Charter. The relevant TFMA were declared to be inconsistent with the Constitution of Canada and of no force and effect to the extent that “dependants” include non-dependant adult children. Additionally, the court declared that the relevant TFMA section be read down to exclude non-dependant adult children.
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