Case information

Charter of Rights — Right to liberty — Testamentary freedom — Whether the liberty guarantee in s. 7 of the Canadian Charter of Rights and Freedoms constitutionally protects testamentary freedom and decision-making — What manner of evidence must litigants present in order to pursue and advance their Charter rights — To what extent are the Charter rights of deceased individuals justiciable.

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Jack Lawen died in 2016, leaving four adult children, three daughters and one son (the applicant, Michael Lawen). His will left $50,000 each to two of his daughters, nothing to his third daughter and the residual of the estate to the applicant. The three daughters commenced an action against the estate brought under s. 3(1) of the Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465 (“TFMA”), alleging their father’s will failed to make adequate provisions for them as dependants. In response, the applicant and the estate’s executor, Joseph Lawen brought an application challenging the constitutional validity of ss. 2(b) and 3(1) of TFMA, alleging those provisions contravened the freedom of conscience under s. 2(a) of the Canadian Charter of Rights and Freedoms and the liberty rights in s. 7. The three daughters were not named as parties in the Charter challenge.

The applicant and the executor were granted public interest standing in the Charter challenge application. The application judge held that s. 2(a) of the Charter was not violated by the impugned provisions, but that the definition of “dependant” was overly broad and offended the s. 7 liberty interests of testators generally. The application judge further found that the breach of s. 7 was not saved by s. 1. Pursuant to s. 52 of the Constitution Act, 1982, the court read down the meaning of “dependant” in the TFMA to exclude all non-dependant adult children. The respondent, Attorney General of Nova Scotia, appealed the decision and the applicant filed a notice of contention asserting the decision should be upheld. The Court of Appeal allowed the appeal and dismissed the applicant’s notice of contention.