Nova Scotia court protects testamentary autonomy

There are interesting things happening in the Nova Scotia courts. Their Supreme Court has become the first court in Canada to determine that testamentary autonomy is a constitutionally-protected right.

What does that mean for your average testator making his or her will in Nova Scotia? It means protection of the right to dispose of his or her estate as he or she sees fit. More specifically, it means that wills that leave out adult, non-dependent children are no longer open to challenge on the ground of not including that child.

The case I'm talking about is Lawen Estate v Nova Scotia (Attorney General). It came about as a result of the will of Jack Lawen. He had three daughters and a son, all adults and all independent of their father. Mr. Lawen left $50,000 to two of his daughters, the residue of the estate to his son, and nothing to his third daughter. The will was contested on the grounds that it did not adequately support some of the beneficiaries.

All provinces in Canada have laws that allow a dependent of a deceased to contest a will if the dependent is not adequately provided for in the will. In almost every province, the definition of "dependent" includes a spouse, a minor child, and an adult child who is financially dependent on the deceased. The law is designed to ensure that someone who depends on the testator would not be left penniless and vulnerable. Nova Scotia's law is a bit different, in that it does not say that an adult child must be financially dependent. This left open the question of whether an adult child who was not in any way dependent on her father could bring a claim that her father had not adequately provided for her. If she could, since there was no actual or economic obligation by the father, it would have to be seen as a moral obligation.

This is an important distinction for testators. If moral obligations to persons to whom you have no legal obligations were to be upheld, you would lose much of your freedom to leave your estate to whomever you wish. Anyone who felt you "owed them" might have a right to contest your will. We all acknowledge that there are some rules about who you have to look after in your will, but adding more rules would chip away at testamentary freedom.

The section of the law that contained that definition of "dependent" was challenged as being against our Charter of Rights because it impaired a person's right to leave his estate where he chooses. But is testamentary freedom a constitutional right? The court said that it is.

The end result is that the judge struck down the sections of Nova Scotia's law that says a dependent includes non-dependent adult children. These sections were held to be inconsistent with Canada's constitution, that they infringe on testamentary autonomy, and that they violate the right to liberty guaranteed by section 7 of the Charter.

This will mean a big change in the law of inheritance in Nova Scotia. It brings that province's law more in line with what the rest of the country is doing about dependents.