N.S. Court finds Sections of Province’s Wills Variation Legislation Unconstitutional

We rarely comment on cases decided in other provinces as they generally have little to no applicability in British Columbia. Such is not the case with Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162. This decision of the Nova Scotia Supreme Court has the potential to drastically alter wills variation claims throughout the country.

In Lawen, the Court found that sections of Nova Scotia’s wills variation legislation were unconstitutional to the extent they permitted non-dependent, adult children to apply to vary their parent’s will.

The facts underscoring Lawen are not particularly remarkable. The deceased died leaving four adult children who he treated unequally under his will. The children who stood to inherit less subsequently brought a wills variation claim.

Instead of simply defending against the claim in the normal fashion, the respondents (those arguing that the will should be left only) argued that the province’s wills variation legislation breached sections 2(a) and 7 of the Canadian Charter of Rights and Freedoms. Section 2(a) guarantees everyone freedom of conscience and religion while section 7 guarantees everyone the right to life, liberty and security of the person. Specifically, the respondents said that the province’s wills variation legislation insofar as it permitted non-dependent, adult children to make claims violated a will-makers right to liberty.

After engaging in a lengthy analysis, the Court found that the legislation did not violate section 2(a) of the Charter as “conscience” means something analogous to a religious belief, which the legislation did not engage.

With respect to the section 7 argument, much time was spent on whether the right to liberty encompassed testamentary autonomy. The Court found that it did in that testamentary autonomy is not necessarily a purely economic or property matter, which are not protected. As well, testamentary autonomy can rise to the level of fundamental personal choice of the kind contemplated by prior cases.

That was not the end of the analysis, however. As with any Charter challenge, the fact that a piece of legislation violates a person’s rights or freedoms does not necessarily mean it is unconstitutional. Section 1 of the Charter says the rights and freedoms set out in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democractic society.” To determine whether a particular Charter violation is justifiable, the Supreme Court of Canada developed what is called the Oakes Test, which gets its name from the case in which it was first articulated, R. v. Oakes. To justify a Charter violation, the government must prove:

1. the goal of the law in question is pressing and substantial;
2. the provisions of the law are rationally connected to the goal of the law;
3. the provision minimally impairs the Charter right or freedom it violates; and
4. the extent to which the law violates the Charter is proportionate to the extent to which the provision advances the goal of the law.

The Court found that Nova Scotia’s wills variation legislation, to the extent it applied to non-dependent, adult children, did not address a pressing or substantive goal, stating:

[85]         If testamentary freedom is an aspect of liberty under s. 7, it is difficult to see how a “pressing and substantial objective” that would justify setting it aside could be rooted in the “proprietary interest” of a non-dependent adult child of a testator. The Attorney General has not identified a coherent objective to be achieved by extending TFMA coverage to non-dependent adults. This conclusion is bolstered by a consideration of the uncertain position of “moral” considerations in Charter analysis.

Having failed to satisfy the Oakes test, the Court found that Nova Scotia’s wills-variation legislation was unconstitutional to the extent it required will-makers to make adequate provision for their non-dependent, adult children.

Lawen is being appealed to the province’s Court of Appeal and is set to be heard in February 2021. We will report back on the outcome of that appeal.

Given the novelty and potential far-reaching effects of this decision, the case is arguably heading for the Supreme Court of Canada. If the decision is upheld, it will certainly affect British Columbia’s wills variation legislation so as to potentially extinguish the right of independent, adult children to apply to vary the will of a parent.