Everyone has the ability to deal with their assets in any way they see fit during their lifetime. The theory goes that one should have that same ability upon death.
Testamentary freedom is an unassailable concept in Canadian law. There are very few ways in which a testator's authority to deal with their estate – in whatever way they wish – is fettered.
Once example is through dependant's support legislation. The determination as to who is a dependant and to what extent a dependant shall be compensated varies greatly from province to province.
Since the Supreme Court of Canada's decision in Tataryn v. Tataryn Estate[1], the law has accepted two complimentary norms which frame dependant's support obligations. The first is characterized as 'legal norms', or "obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise". The second is characterized as 'moral norms', or "society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards."
A moral obligation is, by definition, extremely difficult to quantify, and perhaps even difficult to explain. Does the existence of a moral obligation suggest that one may qualify as a "dependant" without actual dependency? How is this consideration balanced with testamentary autonomy? How can we interpret provincial legislation in this context?
This is what makes the recent decision of Lawen Estate v. Nova Scotia[2] so fascinating.
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