Wills Variation law faces possible challenge

In British Columbia, we have robust wills variation legislation.  If a spouse or child of the testator (that is, the will-maker) is unhappy with their share under the will, they can challenge it in court.  This is true even for adult, independent children. 

This is not the case in all Canadian provinces.  In Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, and PEI, adult children have no right to challenge a will, even if they get nothing.  The only exception is children who were actually financially reliant on the testator, for instance due to disability or education.  That means most independent adult children are out of luck if they are disinherited in those provinces.

But in British Columbia (and in Nova Scotia and Newfoundland) a disinherited adult child can challenge a parent’s Will even if they have been living financially independent of the testator for years.  They may still argue that the testator owed them a moral obligation, even if there was no legal obligation.  This has always been controversial.  After all, a parent has no legal duty to support her adult children while she is alive, and might be surprised to find that she has a ‘moral’ obligation to do so after she is dead!  The cases decided under this legislation have diverged wildly in their results.

Now, a recent Nova Scotia trial court decision has called into question the constitutional validity of the wills variation legislation in that province. That could have significance here down the road, as the law in B.C. on this point is very similar to that in Nova Scotia.

In the case of Lawen Estate v Attorney General of Nova Scotia, 2019 NSSC 162, the deceased’s will left $50,000 to each of his three daughters, and the rest of his estate – including several houses – to his son. The daughters challenged this and sought to vary the will.  However, the trial judge found that the law giving these daughters a right to challenge the will was unconstitutional!

Specifically, the judge relied on section 7 of the Canadian Charter of Rights and Freedoms, which ensures 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.”  He went on to decide that wills variation legislation in respect of non-dependant adult children violated the testator’s right to liberty in a way that was not reasonably justified under section 1 of the Charter.  For the moment, then, adult independent children in Nova Scotia have lost the right to challenge a parent’s will.

This ruling does not immediately affect claimants in British Columbia.  First, it will likely be appealed to Nova Scotia’s Court of Appeals and then to the Supreme Court of Canada.  If the decision is not reversed there, however, the same argument will no doubt end up being applied to the BC law in respect of independent adult children. 

This is one more example of why you should have your Will prepared by a lawyer who is up to date!

A quick follow-up to this post:

Nova Scotia’s Court of Appeal decisively squashed the trial court decision I discussed in this post, and restored the status quo for wills variation claimants in that province (Attorney General v. Lawen Estate, 2021 NSCA 39).  So, whether a will-maker likes it or not, the right of a spouse and children to challenge disinheritance lives on for now.  If that is a concern to you, either as a will-maker or as a beneficiary, we are at your service to offer full advice on your options.

Timothy Watkins

Timothy Watkins
October 02, 2019

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