Is Varying a Will (aka Wills & Estate Litigation) Constitutional? The Court of Appeal Unanimously states, Yes.
As we wrote in April, a 2019 case in Nova Scotia had shaken up the legal landscape of Canadian Wills’ Variation claims throughout the Country (often referred to as Wills & Estates Litigation claims). The decision, which is summarized below, essentially deemed parts of Nova Scotia’s wills’ variation legislation (the Testator’s Family Maintenance Act (TFMA)) as unconstitutional.
Wills’ variation is a sensitive and complex field of law. Because the intentions of a deceased will-maker may only be interpreted (as well as conveyed through hearsay evidence), it is difficult for the Courts to determine why the deceased left what to whom.
The lower courts in Nova Scotia, in deeming parts of the TFMA as unconstitutional, opened up wills’ variation law to be determined as infringing the rights/freedoms of the deceased will-maker. In doing so, there was potential of wills’ variation law throughout Canada being nullified; all that was needed - which, in fairness, was a lot - was for the appellate courts (Nova Scotia Court of Appeal and the Supreme Court of Canada, thereafter) to weigh in on the matter and most importantly, agree. As such, the decision in Lawen Estate left legal academics and lawyers keenly awaiting the decisions of the Nova Scotian appellate courts.
Is varying the will of a deceased person (aka the crux of Wills & Estate Litigation) constitutional?
In Lawen Estate, three daughters had been disinherited where the majority of an estate was left to the Deceased's son. On November 23, 2017, the son and the estate’s executor, the Deceased’s brother, Dr. Joseph Lawen[1], brought an application, separate from the daughters’ actions, challenging the constitutional validity of ss. 2(b) and 3(1) of the Act alleging 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 held that 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. Pursuant to s. 52 of the Constitution Act, 1982, the court read down the meaning of “dependent” in the Act to exclude all non-dependent adult children.
In breaking news, the Nova Scotian Court of Appeal (“NSCA”) has unanimously overruled the application judge, therefore overturning the decision. In short, the NSCA has deemed wills’ variation legislation valid and in force and effect (aka legal and constitutional).
This is a sigh of relief for lawyers, academics, and the public alike.
Certainly it is likely that this decision will be appealed to the Supreme Court of Canada. However, with a unanimous vote, this writer believes that Wills & Estates Litigation is, fortunately, here to stay.
BREAKING NEWS:
Court of Appeal unanimously declares Wills’ Variation law (aka Estate Litigation) constitutional in overturning famous decision.
If you are in need of a Wills’ Variation lawyer aka a Wills & Estates Litigation lawyer, please contact us immediately so we may assist. As you will see on our sister website, we are up-to-date on all things wills in this Province and throughout Canada. We may be reached by filling out the form below, calling (604) 628 8952, or by emailing us at: vsm@tricitylegal.ca!
To learn more and in reasons indexed in Nova Scotia (Attorney General) v. Lawen Estate, 2021 NSCA 39, the Nova Scotia Court of Appeal wrote re the overruling as follows:
Subject:
Sections 2(b) and 3(1) Testators’ Family Maintenance Act. Sections 2(a) and 7 of the Canadian Charter of Rights and Freedoms. Dependent within the meaning of the TFMA. Evidence on Charter challenges. Public interest litigation. Costs payable out of the Estate.
Summary:
Dr. Joseph Lawen, the executor of the estate of Jack Lawen, and Michael Lawen, the primary beneficiary of Jack Lawens’ estate, were granted public interest status to challenge whether ss. 2(b) and 3(1) of the TFMA violated s. 2(a) (freedom of conscience and religion) and s. 7 (right to life, liberty and security of the person) of the Charter.
Sections 2(b) and 3(1) of the TFMA address the issue of whether a testator has made adequate provision in their will for the proper maintenance support of a dependent. The definition of dependent means the widow or widower or the child of a testator. The definition does not require that the child or the spouse of a testator be dependent on the testator.
The Lawens sought to have the provisions of the TFMA read down so that non-dependent adult children were excluded from the definition of dependent.
The application judge found that the TFMA did not offend s. 2(a) of the Charter, but that it engaged the liberty interests of the testator under s. 7 and was not saved by s. 1. He read down the definition of dependent to exclude non-dependent adult children.
The AGNS appealed alleging the application judge erred in finding that the TFMA violated s. 7. The Lawens filed a Notice of Contention asserting the decision could be upheld on the alternative basis that the TFMA offended s. 2(a) of the Charter.
Issues:
Did the application judge err in finding that ss. 2(b) and 3(1) of the Act infringed s. 7 of the Charter?
Did the application judge err in finding that testamentary autonomy was not protected by s. 2(a) of the Charter?
What is the appropriate amount of costs to be awarded to the AGNS on the application and on this appeal, and who will be responsible to pay the cost award?
Result:
Appeal allowed and the Notice of Contention dismissed…
The application judge erred in finding that testator’s liberty interests were engaged by the provisions of the TFMA. The Lawens, as public interest litigants, did not put any evidence before the application judge which would have allowed him to determine that the liberty interests were engaged and, alternatively, even if they were engaged, whether they were in accordance with the fundamental principles of justice.
Similarly, the argument that a testator’s freedom of conscience was engaged was totally without merit. Again, no evidence was put forward for what the testators’ beliefs may have been or that they were sincerely held. The Lawens, as public interest litigants, failed to satisfy the evidentiary obligations on them and were, effectively, seeking to prosecute the Charter rights of a deceased individual, which are not justiciable.
The executor and Michael Lawen are ordered to pay the costs personally and not out of the estate. The public interest litigation had no substantial merit to it and the Estate should not be burdened by the ill-advised actions of the executor or the primary beneficiary.