In her will, Ms. Johansen left all her $116,000 estate to the Calgary Humane Society. Ms. Johansen chose to disinherit her only son who was 51 years old and suffered from Hepatitis C. The son sought an order that adequate provision be made for his proper maintenance and support from his mother’s estate on the basis that he was unable to earn a livelihood. Soule v. Johansen Estate
The son left school in Grade 10 and lived on his own. He held a succession of various jobs. He described his relationship with his mother as a good one. The son unfortunately became a drug user, but was now “clean”. The son acknowledged that he likely contracted Hepatitis C through unprotected sex or from doing drugs. His Hepatitis C resulted in low energy levels, difficulties remembering, stiff joints and frequent migraines.
Since 2005, the son had not worked. He received social assistance, which did not cover his living expenses. He had no assets other than personal effects and a TV “he found in the garbage”.
The evidence of Mr. Arnold, the lawyer who drew Ms. Johansen’s 2007 will, is that Ms. Johansen knowingly chose to disinherit her son. Ms. Johansen was aware of her son’s illness and disability and that he was living on income support. Mr. Arnold recalled that Ms. Johansen said she did not want to leave her estate to her son because it would go to “drugs and booze”.
The common law pays homage to a testator’s right to choose how to dispose of his/her property. Under common law principles, the clear and express wishes of Ms. Johansen would be respected and the Calgary Humane Society would become her sole beneficiary. However, like most provinces, Alberta’s Dependants Relief Act seeks to balance testamentary autonomy with the legal and moral obligations owed to dependant individuals in need.
The Supreme Court of Canada (“SCC”) has recognized that dependant relief legislation confers a broad discretion on the court and must be read in light of modern values and expectations. “The search is for a contemporary justice”. The SCC noted that testamentary autonomy must yield, but only to the extent necessary, to provide just and equitable provision for the testator’s spouse and children. Moreover, once the court has determined what is “adequate, just and equitable in the circumstances… it cannot be cut down on the grounds that the testator did not want to provide what is adequate, just and equitable”. What is required was a consideration of legal and moral obligations and not simply a needs test.
The Alberta court found that the son was a dependant of his mother who failed to make proper maintenance and support for her son. Notably, the definition of dependant in Alberta is broader than in Ontario. The Alberta act refers to “a child of the deceased who is 18 years of age… and unable by reason of mental or physical disability to earn a livelihood”. The Ontario act defines a dependant as “a child of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death”.
The choice before the Alberta court was between Ms. Johansen’s son and a charity; multiple possible claimants were not a consideration. Moreover, “…in seeking contemporary justice, most would say that a parent’s estate should not benefit a charity when the person’s child is permanently disabled and lives on government assistance”. The court therefore ordered that the Humane Society was to receive a gift of $10,000 to respect Ms. Johansen’s wishes. The son received the remainder.
Two issues come to mind. Would an Ontario court have made a similar ruling despite a narrower definition of dependant while “seeking contemporary justice”? Secondly, the irony of a mother who chose, while alive, not to support her adult, disabled son, but was required to do so by a court post-death is rich (pun intended).
Enjoy the summer!
Justin
