The Search for Contemporary Values: A Moving Target

August 28, 2013 Hull & Hull LLP Estate Planning Tags: 0 Comments

 Will challenges and support claims prompt some of the most complex issues that a court must confront. The task of determining testamentary capacity retrospectively, and the validity of dependancy support, raises many hurdles that require a great deal of care and analysis of both the particular circumstances of the case raised, as well as the contemporary values of Canadian society generally.

Such an analysis requires a careful balancing of the autonomy of a testator, weighed against their will’s consistency with contemporary values. The Supreme Court of Canada has espoused that, “What was thought to be adequate, just and equitable in the 1920s may be quite different from what is considered adequate, just and equitable in the 1990s. This narrows the inquiry. Courts are not necessarily bound by the views and awards made in earlier times. The search is for contemporary justice.”


This notion of a moving target regarding contemporary values as a guide for a will’s inherent validity was again raised even more recently in British Columbia. As far back at 1984 and as recently as 2006, Canadian courts have determined that disinheritance motivated by reasons such as the sexual preference of a dependant will not be condoned. Similarly, primogeniture and the favouring of sons over daughters with a legitimate claim to an estate has been found to be an invalid motivation for an unequal distribution through a will.


Therefore, it is clear that courts will overrule or alter a will that is found to not be in keeping with fundamental Canadian values, which are often favoured over testamentary freedom. The challenge for courts is that such a ruling has a massive effect on the final wishes of a now deceased individual, which must be reconciled with continually shifting societal values – therefore, a case-by-case analysis, with little assistance from precedents, must be adopted.


While such challenges confronting courts raise significant concerns with regards to judicial activism, dependants may be able to rely on other grounds for challenging a will that may in some instances be easier to raise than others, such as fraud, undue influence, improper execution or lack of testamentary capacity. Challenges based upon a constitutional argument, such as contemporary societal values, therefore often act as a final gatekeeping mechanism, preventing improperly motivated testators from creating what would otherwise be a socially undesirable estate plan, where society at large, and not an individual dependent, is able to narrow testamentary freedom from on high.


Thank you for reading!


Suzana Popovic-Montag

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