In 2019, we wrote about a novel estate case that 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 Human and Freedoms (“Charter”).

However, in 2021, the New Brunswick Court of Appeal overturned the application judge’s decision, refusing to affirm that testamentary freedom is protected by the Charter.

Lower Court Finds Charter Right to Testamentary Freedom 

The testator passed away in 2016, leaving four adult children: three daughters and one son.

The testator’s will, made in 2009, left $50,000 each to two of his daughters, nothing to his third daughter, and the residual of the estate to the son. The testator’s brother was named as the estate’s executor.

The three daughters commenced two actions against the testator’s estate. One of the actions was brought under s. 3(1) of the Testators’ Family Maintenance Act (the “Act”), alleging that their father’s will had failed to make adequate provision for them as dependants.

Additionally, in a separate action, the son and estate executor brought an application challenging the constitutional validity of ss. 2(b) and 3(1) of the Act, alleging that those provisions contravened the freedom of conscience under s. 2(a) of the Charter and the liberty rights in s. 7 of the Charter.

Ultimately, the application judge found that testamentary autonomy was protected by s. 7 of the Charter, and that ss. 2(b) and 3(1) of the Act violated the right to liberty guaranteed by s. 7

In the result, the application judge held that, while s. 2(a) of the Charter was not violated by the impugned provisions, the definition of “dependant” was overly broad and offended the s. 7 liberty interests of testators generally. He further found that the breach of s. 7 was not saved by the operation of s. 1 of the Charter.  Therefore, pursuant to s. 52 of the Constitution Act, 1982, the application judge read down the meaning of “dependant” in the Act to exclude all non-dependant adult children.

The Attorney General of Nova Scotia appealed the decision, arguing that the application judge had erred in finding the sections of the Act violated s. 7 of the Charter.

Court of Appeal Overturns Lower Court Decision

At the outset, the court rejected the application judge’s findings, stating that they were not borne out by the facts. It further held that the application judge’s analysis that a s. 7 breach may occur in certain circumstances was mere speculation, observing:

“The application judge did not undertake a proper analysis of s. 7, nor explain how, in light of the nature of moral claims, the history of the Act and the established caselaw, s. 7 liberty rights were engaged.  His approach to determining a s. 7 violation did not follow the analytical process mandated by the authorities. […]

There was no evidence put before the application judge to allow him to determine what a person’s motives are for the decisions set out in their will, what role a person’s sense of self or dignity played in the decisions, or how fundamental to a testator were their intended dispositions.  Here the public interest applicants relied only on speculation and the inference of a breach of autonomy arising solely from the possible variation of the will after the death of the testator.”

Therefore, with respect to the application judge’s conclusions on s. 7 of the  Charter, the court held that he had erred in finding that s. 7 liberty rights had been engaged and further, even if they had been, that he had failed to conduct any analysis of whether the deprivation of the testator’s liberty would accord with fundamental justice. The court further stated that no evidence had been put before the application judge to establish an engagement with matters critical to a testator’s dignity and autonomy. Finally, the court held that there had been no finding that the impugned provisions caused harm, or that they were arbitrary, overbroad or grossly disproportionate to the objectives of the legislation, all of which would have been necessary to anchor a breach of s. 7.

As a result, the court allowed the appeal, finding that the Act did not violate Charter rights.

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