Last week, the Nova Scotia Court of Appeal upheld the constitutionality of the province’s wills variation legislation in the matter of Nova Scotia (Attorney General) v. Lawen Estate, 2021 NSCA 39 [Lawen].
In Lawen, the will-maker died leaving four adult children: three daughters and one son (“Michael”). The will-maker’s Will left $50,000 to each of two daughters, nothing to the third daughter, and the rest of the estate to Michael.
Following the will-maker’s death, the three daughters brought an action under section 3 of Nova Scotia’s Testators’ Family Maintenance Act (the “TFMA”), alleging that the Will failed to make adequate provision for them as children of the will-maker. Section 3 of the TFMA provides that, where a will-maker dies without having made adequate provision in his Will for the proper maintenance and support of a “dependant”, a judge may order that provision be made out of the will-maker’s estate for the proper maintenance and support of the dependant. “Dependant” is defined in the TFMA as “the widow or widower or the child of a [will-maker].” The definition does not require that the child or the spouse of a will-maker be dependent on the will-maker.
Michael and the estate’s executor (the “Applicants”) brought an application, separate from the daughters’ actions, challenging the constitutional validity of the relevant provisions of the TFMA on the grounds that those provisions contravened the will-maker’s freedom of conscience under section 2(a) of the Canadian Charter of Rights and Freedoms (the “Charter”) and the will-maker’s liberty rights under section 7 of the Charter.
The application judge held that section 2(a) of the Charter was not violated by the impugned provisions of the TFMA, but that the definition of “dependant” was overly broad and offended the section 7 liberty interests of will-makers generally. Pursuant to section 52 of the Constitution Act, 1982, the judge read down the meaning of “dependant” in the TFMA to exclude non-dependant adult children.
On appeal, the Nova Scotia Court of Appeal agreed with the application judge that the Applicants had failed to establish a breach of section 2(a) of the Charter. No evidence was adduced as to what the will-maker’s beliefs might have been with respect to the distribution of his estate. In any case, evidence of the will-maker’s beliefs would have been irrelevant to whether sections 2(b) and 3(1) of the TFMA offended all will-makers’ sense of conscience.
While the Court agreed with the application judge’s section 2 analysis, the Court found that the application judge had erred in finding that the provisions of the TFMA offended the will-maker’s section 7 liberty interests. The Applicants, as public interest litigants, had not put any evidence before the application judge which would have allowed him to determine that the will-maker’s liberty interests were engaged, or to determine whether the will-maker’s liberty interests were in accordance with the fundamental principles of justice. The 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 will-maker.
As a result, the appellate court allowed the appeal. The Applicants were ordered to pay costs personally in relation to the action. In awarding costs against the Applicants, the Court noted:
“[…] in this litigation the [Applicants] failed to satisfy the evidentiary obligations of public interest litigants and were, effectively, seeking to prosecute the Charter rights of a deceased individual, which are not justiciable. They relied on speculation, bald assertions, and tenuous arguments to attempt to establish the Charter breaches. The [Applicants] did nothing to advance the matter from a public interest point of view.
If you have any questions about British Columbia’s wills variation legislation, a member of our Wills, Estates + Trusts team would be happy to assist you.
August 19th, 2021 update:
An application for leave to appeal to the Supreme Court of Canada has been filed by Michael Lawen (SCC docket 39770).