“The Sounds of Silence from the Grave”
By George M. Clarke and Jill K. Graydon

When writers are in need for atmospheric and non-Hallowe’en purposes, metaphors circulate describing the dead ‘as silent as the grave’, but for matters beyond the gloomy-poetic and the literal the dead have much to say. The law, for one, has found ways not only to give them a voice that carries beyond the grave but also to enable them to interact with their family members, for instance in the form of wills and estates legislation. A sub-set of this is dependants’ relief legislation which recognizes that the arrangement and disposition of an estate is more than just a methodical and one-sided following of instructions, it is a dynamic and evolving story that necessarily affects, and must take into consideration, the perspectives of other relevant relations.

New Zealand led the way in first responding to the need for dependants’ relief legislation, and over the next sixty-plus years, Australia, Canada and the United Kingdom followed suit. As a result, Canadian provincial and territorial Acts draw primarily from New Zealand statutes, adopting the principles and most of the language of the New Zealand Family Protection Act of 1908, and Australasian decisions are of foundational influence on Canadian judges. Indeed, three of the four fundamental cases that guide our courts are from New Zealand and New South Wales, (Allardice v. Allardice (1910), 29 N.Z.L.R. 959, affirmed [1911] A.C. 730, Allen v. Manchester [1922] N.Z.L.R. 218, Bosch v. Perpetual Trust Co. Ltd. [1938] A.C. 463, and Walker v. McDermott (1930, [1931] S.C.R. 94 (S.C.C.)).

The need for such legislation first arose out of a concern that the dependants of a husband or father would become charges on the state if they were not properly provided for in the event of the death of the head of their household. Over the years, the provisions of this legislation and its interpreting case law have developed to reflect societal expectations of moral obligations. Indeed, it has been said that the dominant theme running through the case law is one of ethics, even more than economics, and that heavy emphasis is placed on the moral aspects of the problem. However, Canadian governments have not gone so far as to impose testamentary duties on the testator since they respect the individual’s right to dispose of property as he or she wishes. Instead, the legislation restricts the testamentary freedom of the testator, and a court will only interfere with that right if there is a breach of the moral obligation owed to dependants.

Canadian legislation requires the testator, at a bare minimum, to provide adequate provision for the proper support of his or her dependants. Though some Acts include a wider range of relatives than just immediate family, the majority of legislation recognizes a spouse and the children of the testator as dependants, with the corollary that a child does not literally need to be ‘dependant’ in order to qualify. There must be valid reasons if a family member has cut his or her spouse or children out of his or her will. However, ‘proper’ support has been held not to equate with adequate support, or with what is required to survive or just to get by. Rather, ‘proper’ support takes into consideration the dependant individual’s standard of living while the testator was alive and how it would change as a result of the testator’s death.

Although the courts have held that the first inquiry must be regarding what is the need of maintenance, and the second be into what property the testator left, the leading Supreme Court of Canada decision of Tataryn v. Tataryn Estate [1994] 2 S.C.R. 807 (S.C.C.), out of British Columbia, has dictated that there are two considerations that the courts must undertake: (1) the testator’s legal responsibilities that would have been owing to the dependants had the question of provision arisen during his or her lifetime, and (2) the moral obligations towards the dependants based on current community standards of what a wise and just testator would do in the circumstances. This first consideration of legal responsibilities does not require the claimant to establish need for support as it reflects society’s expectations that children be properly supported and that spouses are entitled to proper support and to share in the fruits of the marriage and the estate, just as they are similarly reflected in the provisions of divorce, family property and family support legislation as well as in the law of constructive trusts. Under the second step the needs of the claimant are a factor of real weight in the assessment of moral obligation, but they are not determinative. Instead, some provision should even be made for independent adult children if the size of the estate permits, and in the absence of circumstances which negate the existence of such an obligation.

Typically, successful applicants are financially needy, and the requirement for need or to show dependency is evident in the specific wording of the Acts of Alberta, Saskatchewan, Manitoba, Prince Edward Island, the Northwest Territories and the Yukon where testator’s children who are over a certain age are called on to demonstrate dependency, for example physical or mental illness that prevents them from being self-sufficient.

However, some provinces are more flexible and open than others in the claims they will accept from individuals to qualify as dependants meriting a larger piece of the estate. Nova Scotia, for example, has held in its leading case of Garrett v. Zwicker (1976), 15 N.S.R. (2d) 118, that a dependant claimant need not show need in the sense of actual want or dependency upon the testator in order to qualify for consideration under the Act. The Nova Scotia Court of Appeal stated that the moral obligation of the testator is relative to the size of the estate; a large estate permits a wider definition of the needs which the testator has a moral obligation to meet. Since in this case the estate was relatively large and the testator had made no provision for his daughter who was a single mother of three, the court balanced the claims and found that the daughter merited a portion of the value of the estate.

Further, the British Columbia Supreme Court has recently issued two decisions which have varied testamentary dispositions because they were based on discriminatory beliefs that fell short of according to moral norms of Canadian society. In Peden v. Peden Estate (2006) B.C.S.C. 1713 the testator did not make adequate provision for one of his three sons because he was gay. In Prakash v. Singh [2006] B.C.J. No. 2762, there was a great disparity in how the testatrix had provided for her children as a result of her belief in her native Indo-Fijian tradition that sons should inherit all of their parents’ estate to the exclusion of the daughters except for token amounts. Even though in the latter case all five children were well-off financially, the court held that the will required substantial increases in the gifts to eliminate the effects of discrimination.

Though it remains to be seen how the rest of Canada will respond to the demands of equality in this context, the courts will continue to strive to balance the search for contemporary justice with the need to protect the freedom of testation.

George M. Clarke is a partner with BOYNECLARKE practicing in the areas of Wills & Estates and Property, and Jill Graydon is a former associate of BOYNECLARKE.

“This article originally appeared in the November 30th, 2007, issue of The Lawyers Weekly published by LexisNexis Canada Inc.”