“You’re Out of my Will!”

Is there any parent who hasn’t been tempted to utter those words to an ungrateful child? Until recently, parents bequeathing nothing to their offspring (or even an unequal share) might not find their final wish carried out. Under Nova Scotia’s Testators’ Family Maintenance Act, even non-dependent adult children have been free to challenge their late parent’s will if they believe dearly departed Mum or Dad did not adequately provide for them.

However, a recent decision of Justice Bodurtha of the Nova Scotia Supreme Court has brought hope to the parents of undeserving progeny. In Lawen Estate v. Nova Scotia (Attorney General) 2019 NSSC 162, the Court determined the decisions parents make in their wills are fundamental personal decisions protected under s. 7 of the Charter of Rights and Freedoms. Assuming the rest of the Supreme Court judges follow the Lawen decision (and they don’t have to), this leaves British Columbia as the last province where non-dependent adult children can complain to the courts about an “unfair” will. For adult children in Nova Scotia, however, perhaps it’s time to schedule that overdue visit to Mum-it’s generally better to earn your way into her good graces than to challenge her will when she’s gone!

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