Disinheritance, Discrimination, and the Case for Including Adult Disinheritance, Discrimination, and the Case for Including Adult Independent Children in Dependants’ Relief Schemes: Lawen Independent Children in Dependants’ Relief Schemes: Lawen Estate v Nova Scotia Estate v Nova Scotia

In 2019 a Superior Court in Nova Scotia struck out adult independent children as dependants under Nova Scotia's Testator's Family Maintenance Act. The decision was based on a finding that testamentary autonomy was a constitutional right protected by s.7 of Canada's Charter of Rights and Freedoms. This paper demonstrates why the constitutional decision in Lawen Estate v. Nova Scotia is flawed. It also explains why including adult independent children in dependants' relief schemes is not only benign in most instances, but may play a role in preventing the perpetuation of discrimination in the private law.

Jane Thomson* Disinheritance, Discrimination, and the Case for Including Adult Independent Children in Dependants' Relief Schemes: Lawen Estate v Nova Scotia In 2019 a Superior Court in Nova Scotia excluded adult independent children as "Dependants" under Nova Scotia's Testator's Family Maintenance Act. The decision was based on a finding that testamentary autonomy is a constitutional right protected by s. 7 of Canada's Charter of Rights and Freedoms. This article explains why the constitutional decision in Lawen Estate v Nova Scotia was incorrect. It also demonstrates why the inclusion of adult independent children in dependants' relief schemes is not only benign in most instances, but may play a role in preventing the perpetuation of discrimination in the private law. This article also contains a brief post-script that discusses the appeal of the Lawen decision that was released in 2021 and a reference to a subsequent case commentary on that decision.

I.
Dependants '  No shortage of news stories, reports, opinion pieces, and studies address whether adult independent children should have the right to challenge a deceased parent's will. The idea is controversial, and many harbor at least a vague unease at the idea of a financially independent adult having the right to contest the carefully considered testamentary wishes of their parent. The most recent and significant manifestation of this unease was the 2019 decision of Lawen Estate v Nova Scotia (Attorney General), 1 where the Nova Scotia Supreme Court excluded adult independent children from making claims under Nova Scotia's Testators' Family Maintenance Act, 2 because their inclusion violated the constitutional rights of testators.
In Lawen, Justice Bodurtha of the Nova Scotia Supreme Court held that the provisions of the TFMA naming "adult non-disabled children" as dependants contravened section 7 of the Canadian Charter of Rights and Freedoms 3 pursuant to his finding that testamentary autonomy was a liberty right. He concluded that the deprivation of liberty caused by including adult independent children in the TFMA could not be saved under section 1 of the Charter. The provision's objective, he held, was "purely moral" in nature and therefore not pressing or substantial. He accordingly read the Act down to exclude adult non-disabled children.
The appeal of Lawen will likely be heard in early 2021. 4 This article argues that it should be granted for the following reasons: First, the decision is constitutionally unsound. To achieve his end result, Justice Bodurtha's reasons mis-categorize testamentary autonomy as a liberty interest rather than a property one. His judgement also skips over essential steps of a section 7 analysis, and in his section 1 analysis, the legislative purpose for including one category of claimant is wrongfully distinguished from the others.
Second, the decision is unnecessary. If a court wishes to reflect societal disproval of adult independent children applying for dependants' relief, it may do so in accordance with the highly-discretionary nature of the legislation itself. Other jurisdictions, where adult children are permitted to challenge a parent's will, have adopted and apply restrictive criteria when hearing such claims. In New Brunswick and Saskatchewan, this practice has resulted in a virtual bar on such claims made by adult independent children.
Finally, the decision is harmful. The inclusion of adult children in statutes like the TFMA provides the sole legal forum for the scrutiny of a specific type of discrimination within the private law: the use of wills and the legal system to perpetuate discrimination through so called disinheritance clauses. By virtue of the TFMA's discretionary nature and the requirement for judges to apply discretionary powers in accordance with Charter values, dependants' relief claims provide a forum for courts to scrutinize and sometimes censure such behavior. A handful of cases in British Columbia are illustrative of this fact.
This article begins with an explanation of the purpose and role of dependants' relief legislation in Canada. Part II reviews and critiques the Lawen decision with respect to the application judge's constitutional analysis. Part III explains why the decision was unnecessary and what the Court could have done if presented with the TFMA claims of Jack Lawen's daughters. It also discusses why the inclusion of adult independent children in dependants' relief legislation is necessary: to guard against the perpetuation of degrading and cruel discrimination by way of estate law.
I. Dependants' relief legislation 1. The Nature and history of dependants' relief claims The first dependants' relief statutes were adopted in Canada at the beginning of the 20th century. 5 They allowed for the widows, children (and eventually widowers) 6 of a testator to sue an estate for financial relief if the testator's will failed to provide for the adequate maintenance of his surviving family. 7 These statutes rebuffed the notion of absolute testamentary autonomy. 8 Prior to dependants' relief legislation, testators could and often did leave the bulk of their estate to their eldest son and provide no financial independence to their widows or remaining children. 9 As noted by Justice McLachlin (as she then was) in Tataryn v Tataryn Estate, 10 the original wills variation legislation of British Columbia owed its enactment to those women's groups at the turn of the 20th century who lobbied their provincial government for its adoption. 11 Indeed, dependants' relief is one of the earliest examples of a legislated redistribution of property and 5. These included the Alberta's Married Women's Relief Act, SA 1910, c 18 (2nd Sess); Saskatchewan's An Act to Amend The Devolution of Estates Act, SS 1910-11, c [Tataryn]. 11. Ibid at para 10.
wealth, regardless of ownership or title, following family breakdown. 12 According to former Chief Justice McLachlin, the purpose of the Act and those like it was to keep dependants "from becoming a charge on the state," but they also represented a "foreshadowing [of] more modern concepts of equality." 13 Family law legislation, informed by this same concept of financial equality between husbands and wives, would be enacted only decades later. 14 Today every province and territory in Canada has its own form of dependants' relief legislation. Although these acts vary with respect to who may apply for relief and under what circumstances, only Manitoba requires that a claimant be in "financial need" in order to be eligible for relief under its statute. 15 The majority of these acts contain an operating clause that allows for claims where a testator has not "made adequate provision" for his or her dependants. 16 What "adequate provision" means is left up to the broad discretionary authority of the courts with some legislative guidance, such as the factors a court must consider listed in section 5 of the TFMA. 17 The provincial or territorial legislature determines who qualifies as a "dependant." Dependants' relief legislation is the sole source of financial support available to the surviving family of the testator or intestate who find themselves inadequately provided for by that person's estate. 18  3 (1) Where a testator dies without having made adequate provision in his will for the proper maintenance and support of a dependant, a judge, on application by or on behalf of the dependant, has power, in his discretion and taking into consideration all relevant circumstances of the case, to order that whatever provision the judge deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant. 22 In 1976, the TFMA 1956's purpose was reviewed by the Nova Scotia Court of Appeal in Garrett v Zwicker: The Act…is designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. 23 19. See Article 684 Quebec Civil Code that provides "Every creditor of support may within six months after the death claim a financial contribution from the succession as support. The right exists even where the creditor is an heir or a legatee by particular title or where the right to support was not exercised before the date of the death, but does not exist in favour of a person unworthy of inheriting from the deceased." [Emphasis added] Art 684 CCQ. 20. While many provisions allow an estate to be bound by a support order, it is not possible to commence a de novo application for support after a person has died. Since its enactment in 1956, only three minor revisions have been made to the Act. 24 Indeed, the modern TFMA, represents one of the most traditional models of dependants' relief legislation in Canada. This is because it allows only for the widow or widower of the testator or the testator's biological or legally adopted children to make relief claims against the estate. Further, the Act applies only to the variation of wills and is not available in the event of an intestacy. With respect to the children of testators, the TFMA makes no distinction between the claims of minor children and those of adult, independent children: In this Act, (a) "child" includes a child (i) lawfully adopted by the testator, (ii) of the testator not born at the date of the death of the testator, (iii) of which the testator is the natural parent; 25 In contrast to Nova Scotia, the majority of dependants' relief acts in Canada now allow for claims made by the common-law spouses of testators, and many provide for claims made by non-biological children, not legally adopted by the testator. 26 Furthermore, almost all dependants' relief legislation allows for claims made in the event of an intestacy, providing a financial lifeline to common law spouses and step-children who are usually excluded from intestacy provisions as they are in Nova Scotia. 27 Notably, until the Lawen decision, a more popular characteristic the TFMA shared with other legislation was its inclusion of adult independent children as dependants. 28 24. These include: 1) adding children in-utero at the time of the testator's death as dependants (TFMA, supra note 2, s 2(a)(ii)); 2) removing a provision that prohibited orders made for a widow "living apart from [ In response, Michael Lawen and one of his uncles who was an executor of the estate commenced their own legal action by way of a Charter challenge, seeking the exclusion of adult independent children as dependants under the Act. Specifically, they argued sections 2(b) and 3(1) of the TFMA, 35 which enumerate adult children as dependants, violated section 2(a) or section 7 of the Charter.
The applicants requested that these provisions: be read down to "refer only to children to whom a testator owes a legal obligation and not children to whom a testator owes a 'moral obligation. ' 2 In this Act, … (b) "dependant" means the widow or widower or the child of a testator; Order for adequate maintenance and support 3 (1) Where a testator dies without having made adequate provision in his will for the proper maintenance and support of a dependant, a judge, on application by or on behalf of the dependant, has power, in his discretion and taking into consideration all relevant circumstances of the case, to order that whatever provision the judge deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant. 36. Lawen, supra note 1 at para 7. Adult Independent Children in Dependants' Relief Schemes… While Justice Bodurtha rejected the applicants' freedom of conscience claim, 37 he agreed that the TFMA's inclusion of adult independent children as dependants constituted a violation of a testator's section 7 rights and could not be saved under section 1 of the Charter. Justice Bodurtha accordingly ordered that the provision be read down to exclude independent adult children from sections 2(b) and 3(1) of the TFMA as allowed by section 52 of the Charter. 38 The following sections explain the problems with Justice Bodurtha's sections 7 and 1 Charter analyses and demonstrate why the inclusion of adult independent children in dependants' relief legislation is not capable of attracting Charter scrutiny, let alone violating any Charter right.

The section 7 analysis in Lawen a. Testamentary autonomy as a liberty right
It is broadly accepted that section 7 of the Charter does not protect economic interests. 39 Protection of property was deliberately excluded from the Charter's purview at the insistence of the provinces when it was drafted. 40 This fact has underlined virtually every decision regarding a government's right to interfere with or outright take an individual's property. 41 Justice Bodurtha acknowledged this point, 42 but he nevertheless held that testamentary autonomy could not be reduced to "a purely economic 37. Ibid at para 75; he found that "[a] violation of s. 2(a) cannot simply follow from a finding that a decision is a fundamental personal choice of the kind discussed in the section 7 caselaw. At the very least…'conscience' must mean something analogous to religious belief." 38. Ibid at para 121. Notably, when the applicants in Lawen first sought declarations of invalidity, Nova Scotia's Attorney General moved for summary judgement against them, claiming, in part, that the applicants' claims were unlikely to succeed and the sections of the Charter relied upon by the applicants did not "extend to encompass testamentary dispositions" (Lawen Estate v Nova Scotia (Attorney General), 2018 NSSC 188 at para 13). 42. Lawen, supra note 1 at para 58; the Attorney General raised the example of expropriation to demonstrate the absence of Charter protection for property rights. Justice Bodurtha believed this to be a flawed analogy. In his opinion, expropriation "does not involve a choice or decision by the owner of the land, but an act of the state in relation to ownership". This seems an odd way to frame the issue, as it is easy to see how this analogy very much involves a choice or decision by a land owner. The choice is the individual's decision to purchase the home in the first place and to continue to live there. The or financial interest." 43 He adopted the arguments of the applicants and agreed that testamentary freedom could be distinguished from inter vivos decisions concerning property. He held that testamentary freedom "involves 'moral choices which are important to an individual's sense of dignity and autonomy' and is a way to 'reward or sanction family members and friends, influence the lives of progeny, and, for some who are ill or in their latter years, attract the attention, and care, of family and friends.'" 44 Rather than a property interest, Justice Bodurtha characterized testamentary autonomy as a "social interest" and "a fundamental personal choice" protected under the liberty branch of section 7. 45 In support of this reasoning, Justice Bodurtha cited several Supreme Court of Canada decisions concerning section 7 liberty interests. These included the right to safe, medical abortions, 46 the right to doctor assisted death, 47 and the right to choose medical treatment for one's child. 48 Justice Bodurtha found that, like these examples, testamentary autonomy was an inherently private decision that could "rise to the level of fundamental personal choice of the kind contemplated in the caselaw under s. 7." 49 An initial problem with this stage of the section 7 analysis in Lawen is the incongruence between the Supreme Court of Canada precedent cited and the issue at bar. If anything, by inviting a comparison between the right to a safe abortion and the right to decide the fate of one's property after death, the proprietary nature of testamentary freedom is heightened rather than diminished. government's decision to expropriate is its subsequent interference with any decisions the homeowner might make with respect to his property. However, if a clearer example of the Canadian Government's untrammeled right to interfere with an individual's decisions related to their property is required, one need only look to the law of de facto expropriation. Indeed, in the leading case, Mariner Real Estate Ltd v Nova Scotia (Attorney General), 1999 NSCA 98, Justice of Appeal Cromwell (as he then was) was asked whether landowners should be compensated for regulation of their land that greatly restricted their ability to build private cottages. Justice Cromwell found that the landowners were entitled to nothing, noting at para 42, "In this country, extensive and restrictive land use regulation is the norm." 43. Justice Bodurtha also referenced other decisions that provided slightly less bodily autonomyfocused examples of section 7 interests such as the education of one's children in accordance with one's beliefs or one's choice of residence. However, these latter citations were in reference to dissenting or minority opinions only. Lawen, supra note 1 at para 52 citing dissent in R v Jones, [1986] Adult Independent Children in Dependants' Relief Schemes… Second and more importantly, Justice Bodurtha's reasons fail to sufficiently distinguish the decision-making behind the distribution of property by way of will from the decision-making involved in inter vivos conveyances of property. Even if one accepted the argument that using one's money to punish, manipulate or ingratiate others to one's self or cause goes to the core of a person's autonomy and dignity and thus attracts the protection of section 7, this practice is hardly the province of wills alone. A key example is the use of a conditional, inter vivos trust that, absent some contravention of public policy or the rule in Saunders v Vautier, 50 can impose conditions upon the beneficiaries through strict instructions to the trustees. 51 Inter vivos property conveyances also play a significant role in estate planning and intertwine with decisions related to the drafting of a will and its contents. Colloquially referred to as "will substitutes," these conveyances occur during a testator's lifetime but are geared towards estate planning and distribution. 52 Apart from the reasons attributed to estate planning by Justice Bodurtha, testators often convey their property while alive to avoid probate fees, taxes, or, relevant to the case at bar, challenges to one's will. 53 Indeed, if the right of testamentary autonomy is a right of a living person as Justice Bodurtha held, 54 its distinction from other decisions taken while one is alive that concern one's property becomes even more tenuous. The decision to dispose of property in a will and the decision to dispose of property through an inter vivos conveyance are both decisions made by a living person, often with identical goals. Furthermore, if these goals contravene public policy or some other facet of the common law that governs property, courts have the jurisdiction to interfere with the 50.
[1841] EWHC Ch J82, Cr & Ph 240, 4 Beav 115 8 (HC). This rule allows beneficiaries of a trust to end it prematurely and received a payout of its capital. This is provided that all of beneficiaries are of the age of majority, have capacity to make this decision and that the trust contains no gift-over and has no other conditions except that the beneficiaries attain a certain age over that of majority. , wherein the Supreme Court found that an estate does not have standing to advance a Charter claim, did not apply to the case at bar. This was because "the court's concern [in Hislop] was with the claim by the estate, not with the testator's ability to dispose of their assets." resulting conveyance, whether the gift is made during the life of a testator or after it. 55 In sum, Justice Bodurtha's reasons fail to sufficiently distinguish decisions to dispose of property by way of will from those decisions executed through inter vivos conveyances. Testamentary autonomy remains what it has always been: an interest in maintaining control over one's private property after one dies. It cannot attract protection from section 7 of the Charter, as to do so would create, as some have termed it, a "back door" constitutional right to protection of property from state interference. 56

b. The principles of fundamental justice?
The final problem with the section 7 reasoning in Lawen is that it provides no analysis on whether testamentary autonomy is inconsistent with the principles of fundamental justice (PFJ), the crucial second step of a section 7 finding. 57 In explanation of this, Justice Bodurtha wrote: The applicants say the deprivation of the testator's liberty does not accord with the principles of fundamental justice. However, the applicants rely on a section 1 Charter analysis for this aspect of the test. Similarly, the Attorney General makes no reference to the principles of fundamental justice. As a result, I infer the Attorney General accepts if a violation of the liberty interest is found, that violation will not accord with the principles of fundamental justice. 58 Unfortunately, the inference made by Justice Bodurtha is not in accordance with the basic law concerning section 7 of the Charter. In a section 7 challenge, the onus rests on the applicants to prove, on a balance of probabilities, both an infringement of a testator's liberty interest and its inconsistency with a PFJ. 59 It is not open to a court to find a section 7 violation based on a deprivation of liberty without also determining whether the deprivation is in accordance with the PFJ. Prostitution Reference, supra note 41 at para 14. 60. Bedford, supra note 57 at para 93. Apart from procedural fairness, the three major PFJ as identified by the Supreme Court of Canada are arbitrariness, overbreadth and gross-disproportionality. Bedford at para 97.
Given that the purpose attributed by Justice Bodurtha to the impugned provision 61 was to impose "a moral standard on testamentary freedom" 62 by creating obligations owed by testators to their adult independent children, it is difficult to identify with which PFJ the deprivation of liberty at issue is in discord. The effect of the provision is directly connected to its purpose. 63 Likewise, it is clear that the effect of the provision is neither overbroad nor grossly disproportionate to its goal. This is due not only to the tailored and limited connection between the provision's effect and its goal, but also to the wide discretion afforded to a court in determining the claims of adult independent children against an estate. As the Attorney General argued in Lawen, a court is under no obligation to issue an order under the TFMA following an application. 64 Furthermore, the TFMA includes criteria a court must consider prior to making these awards that suggest the awards are tailored to the specific circumstances of each application rather than any general notion of entitlement. 65 Presumably, the Attorney General's submissions did not include a reference to the PFJ because the Attorney General believed that no interest under section 7 was infringed. Regardless, if we apply the purpose of the impugned provision to a PFJ analysis, it becomes clear that no section 7 violation can be made out.
Unfortunately, the constitutional problems with the Lawen decision only deepen with its section 1 analysis, which not only fails to fix the decision's section 7 problems, but also is itself based on a misunderstanding of the basic and sole objective of dependants' relief legislation like the TFMA.

The section 1 analysis in Lawen
The first stage of the section 1 analysis as defined in R v Oakes asks whether the objective of impugned legislation relates "to concerns which are pressing and substantial in a free and democratic society." 66 However, the parties' pleadings on this step are not easily discernable in the Lawen decision. Justice Bodurtha's reasons suggest that the Attorney General offered two different purposes for the TFMA 67 whereas the applicants' 61. As later determined by Justice Bodurtha in his section 1 analysis and explained below. 62. Lawen, supra note 1 at para 103. 63. If the purpose of the provision is to fulfill the moral obligations of a testator towards adult independent children, and its effect is to allow those children to make support claims against a testator's estate, then one cannot argue that the deprivation caused by the provision is arbitrary. 64. Lawen, supra note 1 at para 59. 65. Ibid at para 99 citing TFMA, supra note 2. 66. R v Oakes, [1986] 1 SCR 103, 1986 CarswellOnt 1001 at para 73. 67. Lawen, supra note 1 at para 84; Justice Bodurtha notes that the Attorney General argued the Act was "intended to enforce testators' moral obligations to make adequate provision for their dependents," framing of the issue is not clear and must be inferred by their other section 1 related arguments. 68 Regardless, as Justice Bodurtha correctly noted, it is not the purpose of the Act that is relevant to a section 1 analysis, but that of the impugned provision. 69 On this point, Justice Bodurtha did not accept the purpose identified by the Attorney General to encompass that of the impugned provision. Furthermore, the applicants' section 1 arguments appeared based on what they viewed as the objective of the overall Act. 70 Justice Bodurtha therefore supplied his own purpose, concluding that the objective of including adult independent children as dependants under the TFMA was "purely moral" in nature. 71 He held that "imposing a moral standard on testamentary freedom" was not pressing and substantial in its objective. 72 In doing so, Justice Bodurtha noted that while laws based on moral grounds or "social policy issues" had been upheld by the Supreme Court of Canada, this one was not tenable given that it limited "fundamental rights." 73 The problems with Justice Bodurtha's section 1 analysis are threefold. First, as noted above, it fails to establish the principle of fundamental justice with which the liberty violation failed to accord. Second, it wrongly attributes a different objective to the inclusion of adult children as dependents from the objective of the over-all Act. Third, a review of constitutional challenges to legislation with similar objectives demonstrates that the purpose of the TFMA relates very much to concerns that are considered pressing and substantial in our democratic society.
a. The PFJ problem Recall that in his reasons, Justice Bodurtha declined to identify the PFJ with which the deprivation of testator's liberty failed to accord. Instead but also that the Attorney General identified the pressing and substantial objective of the Act to be "balancing the legitimate proprietary interests of [a testator's] heirs in respect of family provision... This means balancing the importance of a testator's will with that of ensuring that the financial needs of spouses and children of testators are adequately met." Ibid at para 84. 68. No purpose of the Act is expressly attributed to the applicants' arguments. However, an inference can be drawn from their arguments concerning the rational connection stage of the Oakes test. These arguments suggest they believed the TFMA's purpose to be the provision of financial relief for those who can establish need or legal dependency during the life of a testator (ibid at para 102). It is not clear which, if either purpose, Bodurtha J. accepted with respect to the TFMA. Earlier in his reasons, Justice Bodurtha cited the purpose attributed to the TFMA in Zwicker, supra note 23, (ibid at para 19). However, his finding that the inclusion of adult independent children as eligible applicants rendered the Attorney General's overall objective "incoherent" suggests that he agreed with the applicants. 69. Vriend v Alberta, [1998]  he accepted the applicants' arguments that this point could be proven through a section 1 analysis. However, when turning to the next steps of the Oakes test, Justice Bodurtha did not accept the applicants' arguments that the provision failed to accord with the remaining steps of the Oakes test. 74 Instead, he held that if the objective of imposing a moral standard on testamentary freedom was pressing and substantial, then the means chosen to achieve the objective would be rationally connected, minimally impairing and proportionate in accordance with the Oakes test and section 1 of the Charter. 75 This finding is remarkable given the close relationship between the proportionality step of the Oakes test and the PFJ analysis of section 7. 76 By concluding that the provision was not overbroad, arbitrary or grossly disproportionate in the section 1 portion of his analysis, Justice Bodurtha's reasoning essentially confirms that no violation of section 7 actually took place to necessitate a section 1 analysis in the first place.

b. A single purpose
The second problem with Justice Bodurtha's section 1 analysis is the notion that the legislative purpose for including adult independent children as dependants differs from the purpose for including spouses and minor children in the TFMA. By stating that the purpose behind including adult independent children is moral, Justice Bodurtha's reasoning infers that the purpose behind including all other dependants is something other than moral. Justice Bodurtha describes the claims of spouses and minor or dependent children as being based on "actual dependency or financial need" or as ones that would attract "a legal obligation of support in the testator's lifetime." 77 This purpose-based distinction between dependants is untenable for two main reasons. First, neither financial need nor inter vivos legal dependency constitutes a mandatory criterion to be met before a court will issue an order under the TFMA. Second, this reasoning reflects a common error of conflating the interpretative tools fashioned by Justice McLachlin in Tataryn 79 This fact can also be discerned from section 5 of the TFMA, which directs a court, when deciding such awards, to consider factors totally unrelated to financial need such as the character and conduct of the claimant, the nature of the relations between the dependant and the testator at time of death, and any services rendered to the testator by the claimant. 80 Additionally, the ability to bring a claim of support against the testator while living cannot be an eligibility factor of the TFMA due to the express exclusion of common law spouses who have not registered as domesticpartners of the deceased, 81 and stepchildren from the Act. These claimants are eligible for claims of support against a living testator in Nova Scotia upon family breakdown. 82 For those common law spouses in Nova Scotia whose partner dies intestate or fails to provide for them through a will, their only recourse is to establish a claim in unjust enrichment against the intestate's estate. Such a claim cannot be grounded in financial dependency but instead must prove an uncompensated contribution to the estate itself. 83 Notably, in the 2020 decision of LeBlanc v Cushing Estate, the TFMA was found to contravene the section 15 Charter rights of a testator's  common law spouse by recognizing only widows or registered domesticpartners as spouses of a testator. 84 Ironically, the ratio of Lawen factored into the reasons why the exclusion of common law spouses from the TFMA was justified under section 1 of the Charter. 85

Legal versus moral obligations in dependants' relief decisions
The second problem with Justice Bodurtha's purpose-based distinction in Lawen is a conflation of interpretive tools with actual terms of art. While dependants' relief decisions often refer to a testator's "legal obligations" and "moral obligations," these terms are simply idiomatic expressions created by Justice McLachlin to describe two major social norms used to interpret and apply dependants' relief legislation.
One of the most significant findings in Tataryn was that financial need was not the objective of what was then British Columbia's Wills Variation Act. 86 Justice McLachlin instead determined that its purpose was to ensure that the spouses and children of testators were provided for in an "adequate, just and equitable" manner, 87 and that awards made under the statute should be interpreted in accordance with contemporary values and societal expectations. 88 Since financial need was not the determining factor for entitlement or quantum, Justice McLachlin sought to identify "a yardstick" by which to measure and evaluate such claims. 89 After briefly canvassing previous methods used by BC courts 90 she suggested instead that two social norms guide the process, what she called the "legal" and "moral obligations" of testators. 91 In her words, the legal obligations of a testator refer to "the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise." 92 The moral obligations, she explained, "are found in society's 84. Leblanc v Cushing Estate, 2020 NSSC 162 [Leblanc]. Only those common law spouses who both agree to make a domestic-partner declaration are recognized as Registered Domestic Partnership. Vital Statistics Act, supra note 24, s 53. 85. For example, the court in Leblanc held that the conclusion in Lawen justified narrowing the group of eligible dependants in the TFMA rather than expanding it. This was especially so given that the right of testamentary autonomy was already abrogated by the TFMA with respect to married spouses, registered domestic partners and the children of the testator. In the court's opinion, the exclusion of common law spouses from the Act served to prevent further harm to the constitutional right of testamentary autonomy (Leblanc, supra note 84 at para 203 reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards." 93 Neither of these "obligations" are legal in nature except to the extent that they flow from a dependants' relief act. They are simply concepts fashioned by the former Chief Justice to assist a court in determining entitlement and quantum of a dependants' relief claim in conjunction with the specific terms of a particular statute.
Additionally, and contrary to Justice Bodurtha's reasoning, both kinds of obligations are fundamentally moral in nature. Indeed, when explaining a testator's "moral obligations," Justice McLachlin included examples of applicants who could ground their claims firmly on the "legal obligations" pillar of the statute as well as those who could not: [M]ost people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator's other obligations may allow. 94 A similar rationale is echoed in the decisions of other jurisdictions before and after the Tataryn decision. In Cummings v Cummings, 95 Justice Blair adopted and applied Tataryn even though adult independent children are not eligible for dependants' relief in Ontario. 96 He noted that the enumerated factors in Ontario's Succession Law Reform Act 97 were moral in nature. Specifically, Justice Blair described factors used to assess an order of support against a living person under Ontario's family law system, such as "the length of time the spouses cohabited" as informing the "moral obligations" of a testator, 98 even though presumably such factors would assist in discerning the "legal obligations" of a testator. 99 The recognition that all dependants' relief claims are undergirded with moral norms is certainly evident in Nova Scotia's case law. For  dependants as moral, whether the dependant in question is a former spouse or an adult independent child. 100 When Tataryn was first released, the reasoning of Justice McLachlin was subject to criticism by leading scholars on the subject of dependants' relief, in part for the confusion it appeared to cause on this very issue. 101 However, since Tataryn, the notion of moral versus legal obligations of testators has become common currency among legal writers, blurring lines between normative tools of interpretation and actual terms of art. 102 Indeed, the terms are often used loosely and confusingly by the judiciary as well, including by the Ontario Court of Appeal in Cummings and the Nova Scotia Court of Appeal in Zwicker. 103 While this error is usually immaterial with respect to the application and outcome of most dependants' relief claims, it is problematic in Lawen because it is used to justify an untenable section 1 decision. Perhaps a clearer way of viewing Justice McLachlin's reasoning in Tataryn is to view the claims of different dependants as simply varying in moral worth. This is likely what Justice McLachlin meant when she noted that the claims of adult independent children "may be more tenuous" than those of former spouses. 104 Regardless, the nature of all claims made under the TFMA is legal while the objective of the Act in fulfilling those claims is inherently moral. Cunningham's study also wrongly concludes that no dependants' relief statute in Canada other than BC's allows adult children to make claims against the estate (at 42). 103. Justice Blair's reasons waiver between contrasting the needs of the claimants and a testator's moral responsibility to them (with no mention of the word "legal") and listing a variety of factors considered in dependants' relief claims including "not only… needs and means but also…legal and moral or ethical claims." Cummings, supra note 95 at para 34. In Zwicker, supra note 23, the Nova Scotia Court of Appeal remarked, "The legal and moral duty to support a wife, infant children or disabled adult children is obviously much stronger than the moral duty to give marginal support to a normal adult child, male or female" at para 43. 104. Tataryn, supra note 10 at para 31. As noted above, unlike most jurisdictions in Canada, a surviving spouse cannot make a division of property claim against an estate and, if left less than he or she would have received in the event of a separation, must file an application for the variation of the will. Family Law Act, SBC 2011, c 25, s 81. such legislation, it is more than likely that the TFMA's "purely moral objective" 105 passes the first step of the Oakes test.

c. A pressing and substantial purpose
In his discussion on this point, Justice Bodurtha reviewed Supreme Court of Canada precedent on obscenity laws, Sunday closing regulations, and the voting rights of incarcerated Canadians, 106 and concluded that courts should not defer to legislatures on issues of social policy, particularly when fundamental rights are limited by such policies. 107 Starkly absent from this inquiry, however, is any mention or discussion of the law that pervades Canadian society with an objective directly analogous to that of the TFMA: family law legislation.
The objective of family law is inherently moral in nature. None of the major legal obligations imposed by family law statutes following family breakdown are based solely on dependency or financial need. Instead they are largely based on what we as a society think members of a family owe one another. 108 This includes the division of property between separated spouses, 109 spousal support 110 and child support. 111 For example, while no legal obligation exists for living parents to provide for children over the age of majority, even if they are disabled adult children, 112 this changes when parents separate. Not only do disabled adult children have a right to receive child support from their separated parents, 113 a legal obligation also exists to support all adult children during their first post-secondary degree. 114 The overarching purpose of all family law legislation, including 105. Lawen, supra note 1 para 86 106. Ibid at paras 87-96. 107. Ibid at para 96. 108. It is particularly ironic, then, that Justice Bodurtha's reasons rely on a resemblance to inter vivos obligations imposed by family law to distinguish the claims of widows and minor children under the TFMA as something other than moral in nature. To identify certain norms as legal and not moral simply because they resemble other laws is circular reasoning, particularly when the inter vivos laws in question are themselves based on what many would view as inherently moral considerations. dependants' relief, is, as one commentator has observed, that of "social engineering," 115 and not simply to keep dependants off the state dole.
At the very least, Justice Bodurtha's review of this issue should have included the lower court decisions concerning section 7 Charter challenges to resource-redistributive family law legislation. 116 While none of these short judgements engage in a section 1 analysis, this is only because the section 7 argument in each case was deemed to be a protection of property argument and not one of liberty. As one Court held, "[i]n short, there is no Charter right not to pay something such as spousal support." 117 Indeed, the fact that the purpose of such statutes has never been impugned in a reported decision, combined with the low bar in place concerning this step of the Oakes test, 118 suggests that the objective of the TFMA, like other family law legislation, relates directly to concerns that are considered pressing and substantial in our democratic society.
III. The case for allowing adult independent children to make claims against a parent's estate This paper has argued that the constitutional findings in Lawen are incorrect and should be overturned upon appeal. If anything, the decision makes it clear that the removal of adult independent children as dependants from the TFMA is not a Charter matter but instead a role for the Nova Scotia Legislature. The final portion of this paper argues that, following a successful appeal of Lawen, the Nova Scotia government should not remove adult independent children as dependants from the TFMA if faced with the question of legislative reform. First, their removal is unnecessary given the broad discretion accorded to courts when faced with these kinds of claims. Second, by keeping them as dependents, Nova Scotia courts will retain a more robust ability to censure the use of wills for purposes contrary to public policy, namely the perpetuation of discrimination through the private law.

A matter of discretion
The legal obligation imposed upon a testator towards their dependants by the TFMA and similar statutes is not absolute in nature and remains subject to the complete discretion of the courts. Each claim is to be determined on a case-by-case basis with no concrete indicators of entitlement or quantum. Indeed, this was a large part of the Attorney General's argument in Lawen: the provisions in the TFMA are discretionary in nature 119 and this discretion has long been used to award adult independent children less than other dependants-if they are awarded anything at all-in Nova Scotia and elsewhere. 120 Before penning his constitutional findings, Justice Bodurtha reviewed the dependants' relief legislation of other Canadian jurisdictions. His purpose in doing so was to demonstrate that most jurisdictions exclude adult independent children from their dependants' relief acts. 121 Aside from this conclusion being somewhat misleading 122 the review itself failed to discuss how some jurisdictions have dealt with societal unease towards adult independent children's dependants' relief claims without altering their legislation.
One such jurisdiction is that of neighbouring New Brunswick, where claims by adult independent children against their parents' estates are permitted under the province's Provision for Dependants Act. 123 Since the New Brunswick Court of Appeal's 1995 decision in Currie v Currie (Estate), 124 no PFDA claim made by an adult independent child in New Brunswick has been successful. 125 In Currie, Justice Bastarache of the NBCA (as he then was) held that adult children claimants had to demonstrate "a special need or other special claim" in order to be eligible for dependants' relief in New Brunswick. 126 Examples cited by Justice Bastarache included: a disability on the part of an adult child, an assured expectation on the part of an adult child, or an implied expectation on the part of an adult child, arising from the abundance of the estate or from the adult child's treatment during the testator's lifetime. 127 In addition, Justice Bastarache held that whether a testator had neglected his or her adult children when they were minors was not a relevant factor in considering the testator's moral obligations towards them at the time of his or her death. 128 The effect of the Currie decision was the New Brunswick Court of Appeal's adoption of the "moral obligation" norm from Tataryn and the determination of what it meant in New Brunswick. In the New Brunswick Court of Appeal's opinion, the standard for ordering relief for adult independent children is very high, requiring a set of circumstances that could very well attract a separate legal claim against an estate altogether, such as unjust enrichment or promissory estoppel.

Lawen
Saskatchewan is another province which takes a similarly restrictive approach to such claims: adult children who are deemed physically and mentally able and fiscally independent must demonstrate that they have "sacrificed [themselves] for the parent in question" in order to be granted relief under Saskatchewan's Dependants' Relief Act. 129 Unlike New Brunswick or Saskatchewan, Nova Scotia is inconsistent in its handling of TFMA orders that concern adult independent children. Older cases tend to follow the more generous approach adopted in Tataryn, although many of them pre-date that decision. In these cases, adult independent children were awarded relief under the version of the TFMA in force at the time where testators were found to have been neglectful or abusive towards them and/or failed to have financially provided for them while they were minors. Additionally, and perhaps equally important, the estates in these cases were deemed large enough that a TFMA award would not prejudice the financial circumstances of other beneficiaries. 130 However, more recent Nova Scotia Supreme Court decisions have denied the claims of adult independent children. Judges have held these individuals have no automatic entitlement to a testator's estate, particularly when reliable evidence before the Court explained why they were left little or nothing by the testator. 131

Still other decisions in Nova Scotia contain elements of both Currie and
Tataryn, as they consider facts that would give rise to special claims on the part of the adult child as well as poorly perceived behavior on the part of a testator. 133 This variety of reasoning highlights a point made in the most oft cited case concerning adult children and the TFMA. In Currie, Bastarach J.A. referenced the Nova Scotia Court of Appeal's decision in Zwicker, noting that the NSCA recognized "the necessity of reviewing old cases with a critical eye because of the need to adapt the exercise of judicial discretion to present social norms." 134 It may be that the present social norms of Nova Scotia have shifted away from awarding TFMA claims to adult children.
It was certainly open to whichever court heard the TFMA application of Jack Lawen's daughters to exercise its discretion in accordance with those norms.
In addition to being relatively benign in nature, it is further argued that the inclusion of adult independent children in dependants' relief legislation is important as it may assist in preventing the use of wills to perpetuate discrimination through the private law.

Discrimination and dependants' relief claims
The use of one's will to punish, coerce and otherwise keep family members in conformity to one's own worldview is an unfortunate but time honoured tradition in the realm of estate law. 135 Challenges to testamentary conditions restricting a beneficiary's decision to marry, choice of religion, or the religion or ethnicity of a beneficiary's spouse have been the subject of court challenges for at least three hundred years. 136  that perpetuate forms of discrimination such as racism, sexism, religious intolerance or homophobia. 137 However, one facet of estate law recently held to be immune to public policy scrutiny is the practice of "disinheriting" an adult child for discriminatory reasons, 138 such as the child's sexual orientation, their gender, or some other immutable, personal quality that offends the testator.
The reason why traditional applications of public policy may be inapplicable to these particular scenarios stems from the 2016 Ontario Court of Appeal decision of Spence v BMO Trust Co. 139 In that case, a judge of Ontario's Superior Court voided an entire will after finding the motivations of the testator in making it, contravened public policy. 140 The uncontested evidence suggested the testator had left nothing to his adult daughter because she had conceived a child with a man of a different race. 141 The decision was overturned by the Ontario Court of Appeal. In her reasons, Justice of Appeal Cronk noted that in Ontario, adult independent children were not eligible for dependants' relief and therefore held no entitlement to their parents' estates. 142 This lack of entitlement factored into the Ontario Court of Appeal's finding that an unconditional clause in a will that simply stated a child was "disinherited"-even for expressly discriminatory reasons-could never be subject to a public policy review. As Justice Cronk explained: Absent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects a testator's right to unconditionally dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds. 143 137. Thomson, supra note 55. Notably, public policy has been used by the courts to censure discrimination in wills because the Charter and provincial and federal human rights legislation have both been found to be inapplicable to that area of the law. University of Victoria Foundation v British Columbia (Attorney General), 2000 BCSC 445 at para 14; Spence CA, supra note 96 at paras 125-126. If the decision in Lawen is upheld, we will have the ironic finding that testamentary autonomy itself attracts Charter protection but the use of it to discriminate against others remains immune to Charter scrutiny. 138. The use of scare quotes indicates that technically there is no such thing as disinheriting a child in Canada. Apart from discretionary dependants' relief schemes in each province, testators have no legal testamentary obligations to any family member. However, the term is used here to describe the act of leaving an adult child nothing by way of one's will due to some perceived transgression on the part of the child. 141. This reason was not expressly stated in the will, but it was accepted by the trial judge with the assistance of affidavit evidence (ibid at paras 44-45). 142. Spence CA, supra note 96 at para 37. 143. Ibid at para 75.
Justice Cronk reasoned that because Ontario courts possessed no mechanism to vary the distribution of gifts in a will under such circumstances, an interference with the wording of the will that generated no relief for the complainant constituted an unwarranted intrusion upon the principle of testamentary freedom. 144 I have argued elsewhere that the decision in Spence effectively provides permission for testators in Ontario to actively use their wills to perpetuate discrimination. While discrimination between members of a family is not normally subject to judicial review, instructions in a will are. A will is a legal document that often requires review and approval by courts for matters of probate or construction. this obligation is also entailed in the judicial exercise of discretionary authority by way of statute: In many cases, the exercise of discretion, through the making of an order, for example, will not constitute direct state action and therefore cannot be subject to the same constitutional scrutiny as legislation or the acts of state officials. Where this occurs, this Court has nonetheless found that the exercise of discretion must adequately reflect the values underlying the Charter… The fact that the discretion exercised here involves procedural entitlements in a civil dispute between private parties rather than a criminal trial does not fundamentally alter the analysis. There are a number of civil cases involving private parties which found that the discretionary powers granted by statute or a common law rule must be exercised in a manner which comports with the values underlying the Charter: …In such cases, however, the balancing of values may be somewhat more flexible than in those involving the state as a party [.] While the Supreme Court has held in Bell ExpressVu Ltd Partnership v Rex 151 that Charter values may only be used to interpret and apply statutes in the event of an ambiguity, 152 discretionary orders made under statutes like the TFMA represent a completely different scenario. Ordering dependants' relief is not a matter of interpreting a statute, but of applying the broad discretion accorded by that statute. 153 Given the precedent set out by Justice L'Heureux-Dubé in Ryan, Charter values must inform any decision related to a dependants' relief claim. Specifically, Charter values such as equality and human dignity should be considered in those cases that involve allegations of discrimination. Of course, when faced with such a claim, a court must also consider competing Charter values such as privacy or common law principles like testamentary freedom. The point is not that equality and dignity should always trump testamentary autonomy or privacy, but that the former values must not be automatically trumped simply because this is an area of private rather than public law. The key, as referenced by Justice L'Heureux-Dubé in Ryan, is that all these values be balanced accordingly in the context of the matter at issue. This notion appears to be borne out by the case law on the subject. In a handful of reported dependants' relief decisions, discrimination based on sex or sexual orientation has factored into a will variation. All of these cases were heard in British Columbia where the vast majority of will variation claims by independent adult children in Canada are made. They demonstrate that courts, when exercising their discretion under section 60 of British Columbia's Wills, Estates and Succession Act 155 or the Province's former Wills Variation Act, 156 consider discrimination a relevant and determinative factor in the decision to vary a will.
b. The BC cases The most recent case involving discrimination and dependants' relief is Grewal v Litt, wherein British Columbia's Supreme Court significantly altered a set of mirror wills that left ninety-four per cent of a multi-million dollar estate to the testators' two adult sons and the remaining six per cent to their four adult daughters. 157 In that case, Justice Adair found the parents had failed in their moral obligation to their adult independent daughters. 158 Notably, discrimination based on sex was not the sole reason behind the ruling. The judgement also found that the daughters had contributed to their parents' business while growing up and had cared for them in their old age despite the cruel and unfair treatment the daughters had received from their parents in return. 159 However, discrimination played a significant role in affirming the Court's decision to vary the wills. 160 A similar ruling occurred in Prakash v Singh, 161 where the daughters of a testatrix were left token gifts while her sons were left the majority of her estate. In that case, the Court held that the testatrix "viewed the [Indo-Fijian] tradition as binding upon her testamentary choices, or at least highly influential." 162 In varying the will, the judgement stated: "In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents' estates." 163 In Peden v Peden Estate, 164 the BC Supreme Court varied a will after finding that one of the testator's three sons, who had cared for both of his parents and his maternal grandmother in their ill health, had received a much smaller gift than his brothers because of his sexual orientation. 165 In reaching its decision in Peden, the Court cited the 1984 case of Patterson v Lauritsen, 166 wherein the Court accepted evidence by way of solicitor's notes that proved the testatrix had chosen to exclude her son from her will because he was gay and addicted to drugs. In varying the will, the Court concluded that the testator's suspicion that her son was addicted to drugs was "unfounded" and held that "homosexuality is not a factor in today's society justifying a judicious parent disinheriting or limiting benefits to his child". 167 c. What the BC cases tell us While the BC cases provide some insight into the issue of discrimination and dependants' relief claims by an adult independent child, they must be assessed in the context of that province's dependants' relief jurisprudence. Unlike New Brunswick or Saskatchewan, British Columbia courts lean towards adult children's default entitlement to inheritance rather than requiring that a child prove extraordinary circumstances in order to succeed in his or her application. 168 Additionally, in all the BC cases, the discrimination identified by the courts was not expressly stated on the face of the will. In other words, these were not cases of a will explicitly perpetuating discrimination like Justice Cronk's hypothetical example in Spence. 169 Instead, in these cases, the motivations of the testator were held to be discriminatory in nature and proven so by evidence outside of the testator's will. Such a finding, however, is not permissible in most Canadian jurisdictions. Absent legislative amendment, extrinsic evidence of a testator's motivations or "true intention" is inadmissible. 170 Therefore, outside jurisdictions like BC, the use of dependants' relief legislation to curb discrimination in estate law will likely only occur in cases of express, explicit discrimination on the face of the will. It seems clear, however, that if implicit discrimination can factor into an adult child's dependants' relief claim, explicit discrimination by way of a disinheritance clause should do so as well.
With these differences accounted for, a few observations about the role that discrimination has played in this kind of dependants' relief claim can be made.
First, when engaging with the discrimination issue, none of the BC decisions expressly reference a legal authority or influence outside of the provincial dependants' relief scheme. 171 However, it can be inferred that the Court in each of these cases-even the 1984 case of Pattersonapplied its discretion under the legislative scheme in accordance with Charter values such as equality and human dignity. In Grewal, the Court labeled discrimination based on sex as "unacceptable," to the extent that it was at issue, and found that the testators had failed their moral duty to their daughters. 172 In Prakash, discrimination based on sex was found to be out of step with "the moral norms of our Canadian society," 173 where "the rights of the individual and equality are protected by law." 174 In Peden, the Court simply cited Justice Spencer's pronouncement in Patterson that homophobic-motivated discrimination is out of step with current societal norms. 175 Second, and relatedly, it is very clear that prior to ordering a will variation, the Courts engaged in a balancing of competing Charter values as well as other policy concerns including testamentary autonomy. 176 Even where discrimination was found, the variance order did not categorically override the testator's wishes. In both Grewal and Prakash, the Court sought to honour the testators' wishes so far as possible. The orders in these decisions still resulted in unequal divisions between female and male 171. In Grewal, supra note 157, the applicant daughters alleged that they were discriminated against on the basis of sex which they said was "contrary to public policy" but the court did not engage with this express argument (para 137). 172. Ibid at para 207. 173. Prakash, supra note 161 at para 57. 174. Ibid at para 58. 175. Peden, supra note 164 at para 55 citing Patterson, supra note 166 at para 5. 176. Notably, in none of the reported BC decisions were the reasons for a testator's discrimination attributed to religion. Instead, "traditional values," in some cases attributed to a specific culture, were referenced: Grewal, supra note 157 at para 155; Prakash, supra note 161 at paras 14, 41. Given that that the jurisdiction of the court to vary a will derives from a statute, a sufficient nexus to attract the protection of the Charter may be engaged: Hogg, "2007," supra note 152, Vol II sections 37.2(b)(g) ps. 37-2, 37-24. If an application is made to vary a will because it expressly discriminates against an adult child on the basis of religious belief, a court may have to consider not only the discrimination perpetuated by the will, but also whether an order to vary it would violate the section 2(a) Charter right of the testator. Indeed, the use of religious wills might attract this issue in those jurisdictions that permit adult independent children to challenge their parents' wills. See Jeffrey Talpis, "Religious Inheritance Laws by the Front and Back Doors in Quebec" (2015) 35:1 ETP J 64 at 78-80.
children, but less so than originally dictated by the terms of the wills. 177 In Peden, a life estate was made an outright gift but was otherwise not adjusted. 178 In Patterson, the excluded child was given a share equal to those of his siblings even though his financial need was much greater than theirs. 179 Finally, in all the BC cases reviewed, the decision to vary a will was based on additional factors beyond the testator's discriminatory motivations. In every case, the claimant personally cared for their parents or enriched them financially without compensation and were found to have had legitimate expectations of inheriting from their parents' estates. 180 The BC cases reveal that while disinheritance based on discrimination can and does play a role in the decision to vary a will in favour of an adult child, such decisions have always been supported by additional factors and have never resulted in a complete override of a testator's wishes. In short, these cases demonstrate judicial discretion in accordance with Charter values, in the balanced manner described by Justice L'Heureux-Dubé in Ryan.

d. Holding space for judicial scrutiny
Outside of BC, no dependants' relief decisions involving discrimination as the motivation for disinheritance have been reported. The closest was the Saskatchewan case of Grams v Grams Estate. 181 A pleading for a will to be proven in solemn form included a public policy argument by the testator's son, who alleged he was left out of his father's will because he was gay. This was not a dependants' relief application, but a request for the will to be set aside, similar to what happened at the trial level in Spence. In ordering the probate trial, the Court in Grams made the following remarks: [I]t seems appropriate to also observe that the Supreme Court of Canada has directed that the values found in the Canadian Charter of Rights and Freedoms…must be considered when analyzing and considering common law principles. … Dependency is currently the only reason set by the Legislature for setting aside a will on the application of a child: The Dependants' Relief Act, 1996, SS 1996, c D-25.01.
My function in Stage 1 is to determine if there is a genuine issue to be tried. In my view, there is a foundation for the argument that a will which ignores a child because of the child's sexual orientation will be set aside." 182 Recall that in Saskatchewan, adult independent children technically qualify as dependants under the Dependants' Relief Act. The application judge's reasons, though almost certainly unintentionally, highlight again the sole route available to claimants like Bruce Grams to have the discrimination leveled against them through the use of estate law, in the wake of the Ontario Court of Appeal's decision in Spence. 183 In her reasons in Spence, Justice Cronk alluded to the fact that if the legislature wanted to prevent disinheritance for discriminatory reasons in private wills, it could reform its legislation accordingly. 184 This is not necessary in regions where adult children can bring dependants' relief claims because those jurisdictions, by including adult children as dependants, have effectively done just that. Claims brought pursuant to a statute with such vast discretionary authority must be considered and applied in accordance with Charter values. This means courts must consider the equality and dignity of an adult child along with the testamentary autonomy of the deceased parent. In this way, the inclusion of adult independent children in dependants' relief schemes provides a forum for the scrutiny of a specific type of discrimination within the private law.
While this use of dependants' relief can deliver an actual financial remedy in response to discrimination, financial compensation is not the most important relief that such claims can provide to these children. As the BC cases demonstrate, a finding of discrimination is not solely determinative of a variation claim, nor is it capable of completely trumping the testamentary autonomy of a testator. Given the very strict criteria in Saskatchewan and New Brunswick's dependants' relief legislation, even if discrimination is proven in accordance with the evidence laws in those jurisdictions, a claimant may ultimately be unsuccessful in having a will varied.
Instead, the most important relief is a court of law's public condemnation of discrimination perpetuated by a purportedly lawful document, regardless 182. Ibid at paras 23-25. 183. The Ontario Court of Appeal's decision in Spence CA, supra note 96 was released after the decision in Grams, ibid. Grams ultimately settled and the trial never proceeded. While the Ontario Court of Appeal's decision is not binding on other Canadian jurisdictions, it is nonetheless highly persuasive given that leave to appeal  of whether financial relief is ultimately obtained by the adult child, This in and of itself is a crucial aspect of the administration of justice and the maintenance of its repute. Indeed, the expressive effect of state action can be just as important as its tangible, material consequences. 185 When adult independent children are removed as dependants from statutes like the TFMA, a court's ability to scrutinize and pronounce upon the use of a will to perpetuate discrimination is hampered. Notably, a case has recently been reported in British Columbia where a party intends to argue that the ratio of Lawen should be applied to exclude adult independent children from the variation of wills in BC 186

Conclusion
In most cases, testators give a great deal of anxious consideration to the final disposal of their worldly goods. They know better than any other where kindness came from and where insults came from; and above all else, it is their property to be given as they wish, restricted only to the extent required by law.The Court must be cautious, indeed, before they interfere with such an historic and basic right. 187 Testamentary autonomy is a "deeply entrenched common law principle" 188 and a significant right recognized by Canada's Supreme Court as worthy of protection and respect. 189 It is not, however, a Charter right. While there may be legitimate societal unease with the ability of independent adult children to challenge a parent's will, no aspect of the Charter can preclude such applications where permitted by statute. In explaining this point, this paper has sought to demonstrate why the decision in Lawen Estate v Nova Scotia was not only wrong, but also unnecessary and even harmful.
In Lawen, Justice Bodurtha of the Nova Scotia Supreme Court held that the inclusion of adult independent children as dependants in the Testators' Family Maintenance Act constituted a violation of a testator's section 7 right to liberty that could not be saved under section 1 of the Charter. This paper has reviewed how the section 7 and section 1 analyses of the decision suffer from significant problems, including a failure to provide any PFJ analysis and a fundamental misunderstanding as to the purpose and objective of dependants' relief legislation in Canada.
The removal of adult independent children from the TFMA is not a Charter issue but a decision only the government of Nova Scotia can make. However, this paper has argued that removing these children from the statute is unnecessary to address popular concerns connected to their TFMA claims, whereas their continued inclusion provides a forum to scrutinize a particular form of discrimination perpetuated by private wills.
First and foremost, removing adult independent children from dependants' relief statutes is unnecessary, as demonstrated by other jurisdictions with similar laws. Any societal unease with adult independent children's dependants' relief claims can be reflected in a strict, interpretive approach by courts. This has been the approach in Saskatchewan and New Brunswick, where adult independent children are almost always unsuccessful in their applications to vary a deceased parent's will.
Second and more importantly, disallowing adult independent children's dependants' relief claims may prove harmful. Given the Ontario Court of Appeal's decision in Spence, the inclusion of adult children as dependents is crucial in providing the only means for a court to examine and denounce the practice of discriminatory disinheritance in Canada. Courts are obligated to apply the discretionary authority of dependants' relief in accordance with Charter values. While such an application requires a careful balance of various competing values, the values of equality and human dignity require a court to, at the very least, consider and pronounce upon discrimination perpetuated through a will. The jurisprudence is multifaceted, and no reported decision in Canada has ever resulted in a complete overriding of testamentary autonomy in favour of the applicant child due to discrimination. However, these decisions also show how the inclusion of adult children in dependants' relief schemes can both assist those who are subject to this kind of discrimination and provide the opportunity for a court to denounce it in a public forum.
In 2011, British Columbia radically overhauled both its family and estate legislation. During this process, various actors lobbied for the removal of adult independent children from its wills variation scheme. Wally Opal, the Attorney General at that time, cited discrimination against female children as a main incentive for keeping adult independent children as dependants under its legislative scheme. 190 If faced with a similar decision, I believe the government of Nova Scotia should follow the example of its BC counterpart. Indeed, given the recent outcome in Leblanc v Cushing Estate,191 and in the interests of promoting such values as equality and dignity, the Nova Scotia government should consider not only keeping adult children as dependants under the TFMA, but also extending such relief to the common law spouses and step-children of testators as well.

Post Script
The Appeal in Lawen was heard in February of 2021. It was allowed and the respondents' Notice of Contention was dismissed, both from the bench. Written reasons were released three months later. 192 The Nova Scotia Court of Appeal provided only brief reasons for its decision with respect to the constitutional aspects of the appeal. Justice Farrar, writing on behalf of the court, rejected Justice Bordutha's s. 7 findings based on the absence of an evidentiary record in the case. The judgment also raised the interesting question as to whether "public interest standing confers any greater right to assert a claim on behalf of estates generally than an individual estate would have" 193 -although the NSCA declined to answer it.