Nova Scotia Court of Appeal unwilling to affirm Charter right to testamentary freedom
Jennifer Taylor and Bhreagh Ross
The Nova Scotia Court of Appeal has overturned a decision that found a Charter right to testamentary freedom. Nova Scotia (Attorney General) v Lawen Estate¹ involved an appeal by the Attorney General of Nova Scotia from a 2019 decision striking down two provisions of the Testators’ Family Maintenance Act (“TFMA”)² as unconstitutional, because they allowed non-dependent adult children to make a claim against the estate on the basis that the testator did not adequately provide for them in the will. The Nova Scotia Court of Appeal (“NSCA”) allowed the Attorney General’s appeal from the bench in February 2021 and has just released its reasons, which emphasize the importance of having an evidentiary record to support any alleged breach of the Canadian Charter of Rights and Freedoms.
Jack Lawen died in 2016, leaving behind four adult children (three daughters and one son).
In his will, which he made in 2009, Lawen left $50,000 each to two of his daughters and the rest of his estate to his son. (It is unclear how much the residue of his estate was worth, or why he did not provide for his third daughter.) Lawen’s three daughters started an action under the TFMA.
Without naming the daughters as parties, Lawen’s son and brother (the executor of the estate) brought an application under the Charter, alleging that the TFMA provisions infringed the freedom of conscience and right to liberty of testators, as protected under section 2(a) and section 7, respectively. They were granted public interest standing to bring the Charter application, which was heard in late 2018.
Decision under appeal
Briefly, the application judge found that the right to liberty under section 7 of the Charter protected testamentary decision-making, and that testamentary autonomy was not just an economic or property issue. He concluded that the TFMA provisions unjustifiably infringed section 7 because they allowed testamentary choices to be undermined by the so-called “moral” claims of independent adult children to the property of the estate. However, the application judge concluded that there was insufficient support for the claim that the TFMA provisions also infringed freedom of conscience.
The application judge’s decision is discussed in more detail here.
Constitutional issues on appeal
Justice Farrar, writing for the Court of Appeal, agreed with the Attorney General that the TFMA provisions did not infringe section 7 or section 2(a)³ of the Charter.⁴
No section 7 infringement
The Court of Appeal noted that Charter claims cannot be decided in a vacuum,⁵ and will typically involve a voluminous evidentiary record. That was not the case here: the evidence consisted of two short affidavits from the Respondents, describing the estate litigation but not addressing the substance of the alleged Charter breaches. Justice Farrar repeatedly noted that there was “no evidence” before the Court to support the section 7 claim,⁶ which meant that there was no factual foundation for the application judge’s finding of a section 7 breach.⁷
As Justice Farrar explained:
There was no evidence put before the application judge to allow him to determine what a person’s motives are for the decisions set out in their will, what role a person’s sense of self or dignity played in the decisions, or how fundamental to a testator were their intended dispositions. Here the public interest 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 testator.⁸
The Court of Appeal also took issue with the application judge’s comments on the “moral” nature of TFMA claims. According to Justice Farrar:
The suggestion that claims by non-dependent adult children (or spouses by necessary implication) are “purely moral” suggests they do not merit consideration and are an unjustified fettering of a testator’s autonomy. It ignores the very fact that a moral claim emerges from the moral obligations of the testator during their lifetime.⁹
The failure to consider the principles of fundamental justice was another gap in the application judge’s section 7 analysis.¹º
No section 2(a) infringement
The lack of evidence also doomed the Respondents’ claim that the TFMA infringed freedom of conscience. Justice Farrar concluded:
 I agree with the application judge that the Lawens have failed to establish a breach of s. 2(a). First of all, there was no evidence of what Jack Lawen’s beliefs may have been or that they were sincerely held. Secondly, Jack Lawen’s evidence, whatever it may have been, would be irrelevant to whether ss. 2(b) and 3(1) of the Act offended all testators’ sense of conscience.
 Not only is this case lacking a “robust evidentiary record”, it lacks any evidentiary record. The argument that ss. 2(b) and 3(1) of the Act violate testators’ freedom of conscience was entirely without merit. The application judge did not err in dismissing it.
The Court of Appeal reversed the costs award granted to the Respondents in the court below, and awarded additional costs against them for purposes of the appeal. The Court of Appeal ordered that costs be paid by the Respondents directly and not out of the estate. Justice Farrar reasoned:
The Lawens sought public interest standing in order to attempt to do what the Estate could not. In seeking public interest standing, they stepped out of the box of the Estate to attempt to assert the right to testator autonomy in the public interest.¹¹
The decision confirms that insufficient evidence and unfounded arguments in constitutional disputes may result in adverse cost consequences, particularly where claimants purport to be acting in the public interest.
Following the Court of Appeal’s decision, non-dependent adults are once again free to bring an application under the TFMA for provision from the estate. These applications will be decided based on a list of factors outlined in the TFMA.
In the circumstances of Lawen Estate, the Court of Appeal was unwilling to find that the Charter protects testamentary autonomy. While the Court did not rule out the possibility that testamentary autonomy could be found to come within the ambit of section 7 protection in a different case, a much more robust evidentiary record would be required for that to happen. It will be left to future courts to resolve the tension between testamentary freedom on the one hand, and a testator’s moral obligation to their family members on the other.
This update is intended for general information only. Estate planners with questions about what this decision means for them can contact a member of our Estates & Trusts group.
¹ Nova Scotia (Attorney General) v Lawen Estate, 2021 NSCA 39 [“Decision”].
² Testators’ Family Maintenance Act, RSNS 1989, c 465, section 2(b) and section 3(1).
³ The Respondents filed a Notice of Contention, asking the Court of Appeal to uphold the decision on the basis of a section 2(a) infringement.
⁴ It is perhaps odd that the Court of Appeal, at paragraph 13, cited the administrative law case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 66 (rather than, say, Housen v Nikolaisen, 2002 SCC 33) to support the application of a correctness standard of review.
⁵ Decision at para 44, citing MacKay v Manitoba,  2 SCR 357.
⁶ Decision at paras 39-40, 43, 52.
⁷ Decision at para 29.
⁸ Decision at para 43.
⁹ Decision at para 32.
¹º Decision at para 53.
¹¹ Decision at para 75.
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