By Adam Harris
Most people do not realize that the bequests in their will could be challenged by a family member that they leave out of their will and can be changed after they pass away.
Nova Scotia’s Testator’s Family Maintenance Act (TFMA) allows for an adult child that is not provided for in their parent’s will to apply to the court and challenge the will. The TFMA permits a judge to make an order for "proper maintenance and support" for a family member when the will has not done so. This has even applied to adult children who are financially independent.
However, a recent Nova Scotia Supreme Court decision changes all of this. A judge has overturned this part of the TFMA.
In the case of Lawen Estate v. Nova Scotia (Attorney General), a Halifax man with a significant estate had four adult children. He made a will in 2009 that left $50,000 to two daughters and most of the remainder of his estate to his son. One daughter did not receive a bequest at all.
The daughters challenged the will in court. They argued that the will failed to make adequate provisions for them, based on the TFMA.
When someone makes this type of claim, a judge has discretion to provide for maintenance, or money, for non-dependant adult children whom the judge determines were inadequately provided for in a will. To be a ‘dependant’ within the meaning of the TFMA, does not require actual financial dependency or need. The claimant need only be a child, widow, or widower of the testator.
In Lawen, the executor and son made an application asking the court to declare that parts of the TFMA were unconstitutional under section 7 of the Charter of Rights and Freedoms, which protects the right of life, liberty and security of the person. They argued that the TFMA should not permit adult, non-disabled children to make these types of applications.
The government of Nova Scotia was also involved in the case. The government argued that there are societal benefits to letting the court decide if an award should be made to an adult child because parents sometimes pass away without amending their will to reflect their intentions or changing circumstances of their children.
However, the judge in Lawen said that those reasons are not sufficient to infringe on testators’ freedom to leave their estate as they see fit, and agreed that the portion of the TFMA that allows adult children to challenge their parent’s will is unconstitutional.
“A testamentary decision is a fundamental personal decision that is protected under section 7” of the Charter, Justice Bodurtha wrote.
Following Lawen, the only people who are owed a legal obligation under the TFMA are dependants and disabled children.
This is a substantial change in the law and it will be interesting to see if the case is appealed.
This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.