Abstract

In 2019 a Superior Court in Nova Scotia struck out adult independent children as dependants under Nova Scotia's Testator's Family Maintenance Act. The decision was based on a finding that testamentary autonomy was a constitutional right protected by s.7 of Canada's Charter of Rights and Freedoms. This paper demonstrates why the constitutional decision in Lawen Estate v. Nova Scotia is flawed. It also explains why including adult independent children in dependants' relief schemes is not only benign in most instances, but may play a role in preventing the perpetuation of discrimination in the private law.

Highlights

  • The most recent and significant manifestation of this unease was the 2019 decision of Lawen Estate v Nova Scotia (Attorney General),[1] where the Nova Scotia Supreme Court excluded adult independent children from making claims under Nova Scotia’s Testators’ Family Maintenance Act,[2] because their inclusion violated the constitutional rights of testators

  • He concluded that the deprivation of liberty caused by including adult independent children in the TFMA could not be saved under section 1 of the Charter

  • Almost all dependants’ relief legislation allows for claims made in the event of an intestacy, providing a financial lifeline to common law spouses and step-children who are usually excluded from intestacy provisions as they are in Nova Scotia.[27]

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Summary

Dependants’ relief legislation

Since its enactment in 1956, only three minor revisions have been made to the Act.[24] the modern TFMA, represents one of the most traditional models of dependants’ relief legislation in Canada This is because it allows only for the widow or widower of the testator or the testator’s biological or legally adopted children to make relief claims against the estate. In contrast to Nova Scotia, the majority of dependants’ relief acts in Canada allow for claims made by the common-law spouses of testators, and many provide for claims made by non-biological children, not legally adopted by the testator.[26] almost all dependants’ relief legislation allows for claims made in the event of an intestacy, providing a financial lifeline to common law spouses and step-children who are usually excluded from intestacy provisions as they are in Nova Scotia.[27] Notably, until the Lawen decision, a more popular characteristic the TFMA shared with other legislation was its inclusion of adult independent children as dependants.[28]

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