All About Estates

Testamentary Freedom – A Fundamental Right?

Whether testamentary autonomy is a constitutionally protected right has not been considered by the courts … until now.

The rules of testamentary succession (i.e. wills and estates) are governed by provincial law. While the legislation differs between the provinces and territories, most have enacted legislation requiring the deceased to make “adequate provision” for her “dependants.” If the deceased fails to do so, the dependant may apply to the court for an order directing them to receive a share of the estate.

The Supreme Court of Canada examined the public policy interests protected by “dependant support” legislation in the context of the British Columbia Wills Variation Act in Tataryn v. Tataryn Estate, [1994] 2 SCR 807. In that case, the Court held (at page 816):

The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.

At a minimum, “dependant support” legislation prevents those left behind from becoming a charge on the state. It does this by ensuring that the “legal and moral” obligations of a testator to provide support to family members continues after death.

There has always been a tension in the law as how to define a deceased’s “moral obligation.” In particular, does a person have a moral obligation to provide financial support to an independent adult child? In what circumstances should a judge enforce a moral obligation?

Perhaps in order to avoid being confronted with these sticky situations, most of the “dependant support” legislation in Canadian include a needs-based test. However, Nova Scotia’s Testators’ Family Maintenance Act, RSNS 1989, c 465 (the “TFMA”) broadly defines “dependant” (at s. 2(b)) to include: “the widow or widower or the child of a testator.”[1] As a result, any child of the deceased is entitled to apply to the court for support out of the deceased’s estate, regardless of actual dependency or need.

When Jack Lawen died in 2016, he left a $50,000 legacy to two of his three daughters and the residue of the estate to his only son. Mr. Lawen’s three daughters (who were independent adults) commenced an action pursuant to the TFMA, claiming that their father’s will failed to provide them with adequate provision. In response, Mr. Lawen’s son brought an application (Lawen Estate v Nova Scotia (Attorney General), 2019 NSSC 162) seeking a declaration that the provisions of the TFMA that allowed independent adults to seek support from an estate violated s. 7 of the Constitution Act, 1982 (the “Charter“).

Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In its Charter analysis, the Supreme Court of Nova Scotia found that the “liberty” protected by s. 7 includes more than just freedom from physical restraint; it also includes protection of an individual’s right to make decisions of fundamental importance. However, s. 7 does not protect property or economic rights.

The question concerning the Court was whether testamentary autonomy (i.e. succession planning) is a decision of fundamental importance. The Court held that it was: “(1) testamentary autonomy is not necessarily a purely economic or property matter, and (2) it can rise to the level of fundamental personal choice of the kind contemplated in the caselaw under s. 7.”

Having found that the impugned provisions of the TFMA infringed upon testamentary autonomy and violated the right to liberty guaranteed by s. 7 of the Charter, the Court went on to consider whether the provisions were saved under s. 1 of the Charter. Recall that s. 1 reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Court held that the impugned provisions of the TFMA were not be saved by s. 1 – there was no pressing and substantial objective to be achieved by allowing non-dependant adult children to obtain support from an estate that outweighed a testator’s right to autonomy. As a result, the Court held that the appropriate remedy was to read down the TFMA to exclude non-dependant adult children.

What is interesting in this case is the judge’s decision that testamentary autonomy, i.e. the right to dispose of your property after death as you please, is a “fundamental personal choice.” This is to be distinguished with mere “lifestyle choices,” such as a devotion to golf and a love of trans fats. Unlike “fundamental personal choices,” “lifestyle choices” do not earn Charter protection.

While most common law jurisdictions provide individuals with testamentary autonomy, this is by no means a right universal recognized. Many civil law jurisdictions have a form of forced heirship (i.e. property passes automatically on death to the deceased’s next of kin). These force heirship laws exist without much controversy. Nevertheless, having found that testamentary autonomy is granted Charter protection, this case from Nova Scotia may have an impact across Canada.

[1]    For comparison, s. 57(1) of the Ontario Succession Law Reform Act, RSO 1990, c S.26, defines dependant as: “(a) the spouse of the deceased … (c) 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.”

About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation. More of Gillian's blogs can be found at

1 Comment

  1. David Serber

    June 13, 2019 - 3:12 pm

    Great summary Gillian – thanks. A nice win for supporters of testator’s rights!

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