Section 2(1) of the Testators' Family Maintenance Act provides that:

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1 The subject of an address I once listened to at the Canadian Bar Convention was entitled "Post Mortem Estate Planning". This was described as being related to the change or repairs which can be made to a testator's will or the disposition of his estate after his death in situations where the disposition or the effect of the will are not satisfactory. This is perhaps a sad commentary on the long established concept that a man's will is inviolate and should not be disturbed in any way. However, the ever evolving case law and statutory legislation making such a thing possible may perhaps be attributed to the fact that members of the legal profession do not take the time nor have the inclination to do enough "Pre Mortem Estate Planning" at the time the will is drafted. Suffice it to say that the Testators' Family Maintenance Act takes it place along with the Matrimonial Property Act, the Variation of Trust Act, a Deed of Arrangement and the common law rule in Saunders v. Vautier in making a new will for the testator. This paper does not purport in any way to exhaust a study of the case law on matters involving the Testators' Family Maintenance Act. It merely intends to discuss two recent cases in which the writer had a somewhat more than passing interest and which it is thought reflects the attitude that the court is prone to take toward the more relevant sections of the Act. Section 2(1) of the Testators' Family Maintenance Act provides that:

2 _ 2 _ 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 he deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant. A dependant is defined by the Act as being a widow, widower, or child of the testator. Relevant circumstances that may be taken into consideration by the Court before granting an Order for Maintenance are stated in Section 4 which reads: Upon the hearing of an application made by or on behalf of a dependant under subsection (1) of Section 2, the Judge shall inquire into and consider all matters that should be fairly taken into account in deciding upon the application, including without limiting the generality of the foregoing: (a) whether the character or conduct of the dependant is such as should disentitle him to the benefit of an order under this Act;

3 - 3 - (b) (c) (d) (e) (f) (g) (h) whether the dependant is likely to become possessed of or entitled to any other provision for his maintenance and support; the relations of the dependant and the testator at the time of his death; the financial circumstances of the dependant; the claims which any other dependant has upon the estate; any provision which the testator while living has made for the dependant and for any other dependant; any services rendered by the dependant to the testator; any sum of money or any property provided by the dependant for the testator for the purpose of providing a home or assisting in any business or occupation or for maintenance or medical or hospital expenses. Of course, the legal and moral duty to support a wife, infant children or disabled adult child is obvibusly much stronger than the moral duty to give marginal support to a normal adult child, male or female. The question may be asked just how far will the court condescend to award support or maintenance to an adult married child of the testator who is neither mentally nor physically disabled.

4 - 4 - In the case of Cox v. The Halifax Church of God in Canada, [1983] 56 N.S.R. (2d): A 59 year old woman applied under the Testators' Family Maintenance Act for an order to have the proceeds of the estate of her deceased father paid to her for her maintenance and support. The father, who had always denied the daughter was his, left his entire estate to a now non-existent church. The Nova Scotia Supreme Court, Trial Division, in allowing the application, held that the father had a moral obligation to support his daughter, and ordered the entire estate paid over to the daughter. Mr. Justice Nunn in a well reasoned opinion, having found that the applicant was a legitimate child of the testator stated: "That finding, however, does not end this inquiry. It is only the first step. The plaintiff must now prove she is a dependant in need of support from her deceased father, who died in November, She was 59 years of age at the time of his death, had no source of income herself, and although married, her husband has been unable to work for the past four years due to back troubles

5 _ 5 _ and he has been receiving social assistance throughout this period. All this is revealed in the plaintiff's affidavit on file. She further attests that she is unable to obtain employment and her only asset is a one-fifth undivided interest in the dwelling in which she and her husband reside." He went on to say that: "The principles to be applied in deciding questions under the Testators' Family Maintenance Act in Nova Scotia have been fully reviewed by MacKeigan, C.J.N.S. in Garrett v. Zwicker (1976), 15 N.S.R. (2d) 118; 14 A.P.R There is no doubt that a dependant child of the testator may well be an adult. At p. 136 of the Garrett case, MacKeigan, C.J.N.S. states: The task before this court is to determine whether the testator failed to make 'adequate provision in his will for the proper maintenance and support' of his adult daughter...so as to warrant interference by the court. The question to be asked is moral, not economic. In ignoring the applicant in his will, was the testator in

6 - 6 - all the circumstances guilty of a 'breach of morality', or a 'manifest breach of moral duty'? The question must be answered by weighing and balancing the nature and extent of the claimant's need, the size of the estate, the strength of the claimant's moral claim..." It must be pointed out that the courts are reluctant to interfere with the wishes of the testator as expressed in his will and only do so to the extent permitted by correcting a breach of morality on the testator's part. Mr. Justice Nunn found that the plaintiff did have a sufficient moral claim to call for the estate to respond to her established need and awarded her the entire assets of the estate amounting to approximately $21, Apparently the majority of such cases are decided on the basis of common sense and morality rather than on any hard and fast principles of law and probably would never be commenced in the first place if it were not for the provisions for relief as set out in the Testators' Family Maintenance Act. The Act indeed would seem to be at variance with the Wills Act in as much as the will of the testator was expressed as being "his last will and testament", validly executed and in every way conformed to the provisions of the latter Act.

7 Whether or not the court would have been as considerate had there been more worthy dependants is a moot question. In this case, the church was the sole beneficiary although a mere shell and not a viable operation. - The Cox case is recommended as containing many interesting points of law other than that of an application under the Testators' Family Maintenance Act, some being the presumption of legitimacy while born during lawful wedlock, the Cy-Pres Doctrine as applied to charitable bequest, and the law of lapse. A much more controversial issue arises in the interpretation of Section 6 of the Testators' Family Maintenance Act which involves a variation or suspension or discharge of a previous order made under Section 2 of the Act. Section 6 reads as follows: Where an order has been made for proper maintenance and support, a judge upon application at any subsequent date, may: (a) inquire whether the party benefited by the order has become possessed of, or entitled to, any other provision for his maintenance or support;

8 - a - (b) (c) inquire into the adequacy of the provision ordered; and discharge, vary, or suspend the order, or make any other orders he considers proper in the circumstances. Relevant facts to be considered in making an order under this section are found in subsection (2): The judge may when proceeding under subsection (1), include as relevant the fact that the dependant was: (a) (b) (c) the surviving spouse of the testator and has remarried; or an unmarried child of the testator who has married; or an infant child of the testator who has attained the age of majority; or (d) a disabled child of the testator who has ceased to be disabled. R.S., c. 303, s. 6; 1977, c. 18, s.26. While there is very little, if any, Nova Scotia case law on this particular section of the Act one recent case is perhaps worthy of discussion; this being the case of Maldaver v. Canada Permanent Trust Company (No.2) [1982) 12 E.T.R.

9 - 9 - Mrs. Helen Maldaver, the 68-year-old daughter of the testator, Morris H. Webber, sought an upward variation to a support order which had been made by former Chief Justice Cowan on an application under the Testators' Family Maintenance Act, five years previously (1 E.T.R. 41). The Testator's will had provided that two daughters, Mrs. Maldaver and Mrs. Gilbert, were to received $100 per week out of the income of his estate and on the death of the survivor of these two daughters, the residue of his estate was to be divided into three equal shares for the child or children then alive of Mrs. Maldaver, Mrs. Gilbert and another daughter, Mrs. Long. Chief Justice Cowan ordered that Mrs. Gilbert and Mrs. Maldaver were to be paid $214 and $170 per week respectively out of the estate, instead of $100 per week as the will provided, so that each daughter would have, after taking into account income from other sources, a total income of approximately $13,200 per year. In the present case only Mrs. Maldaver is seeking an upward variation of the support order which was made in her favour five years previously. Only one grandson of the testator, Richard

10 - 1 o Long, opposed the upward variation as he had done the initial application. Mr. Justice Hallett heard the case and decided that Section 6 of the Act "does not contemplate increasing an order that has already been made." He came to this conclusion apparently on two grounds: the first based on the wording of Section 6 of the Act with particular reference to subsection (2) thereof and the case law such as it is. The only case cited by council for Richard Long was that of Dunn v. Dunn [1959] A.C. 272, [1959] 2 All E.R. 134, a Privy Council decision construing the New South Wales legislation which was an initial application for relief and not an application to vary an existing order. The ratio decidendi in the Dunn case was that an initial order should be determined on the basis of facts as they existed at the date of death and not at the date of the application. Mr. Justice Hallett seems to have placed much emphasis upon an obiter dictum in Dunn v. Dunn that "their lordships do not think the variation section in the New South Wales Statute would enable a provision made in a previous order to be increased" [19591 A.C. 273 at 289. In an annotation to the Maldaver case, Professor Gordon Bale of the Faculty of Law, Queens University, comments: "Such authorities [as Dunn v. Dunn) are only of persuasive value. Appeals to the Privy Council were abolished 33 years ago and even before that time Privy Council decisions from

11 jurisdictions other than Canada were considered to be outside our own judicial hierarchy and therefore of only persuasive authority. It is time for Canadian Courts to cease genuflecting to the Privy Council!" continues: In a most critical analysis of the decision in the Maldaver case Professor Bale "It is true that the four examples in s. 6(2): the remarriage of the surviving spouse, the marriage of a child, an infant child attaining the age of majority and a disabled child ceasing to be disabled, are factors which would seem to indicate only a downward variation. However, it must be noted that s. 6(2) simply says that the Judge "may include" as relevant these four facts in making a variation order under subs. (1). Section 6(2) does not say that the Judge shall take these four facts into consideration nor does it say that these are the only facts which are relevant. The conclusion that an order may only be diminished under s. 6(1) appears to be a questionable inference to draw from the list of factors in s. 6(2). The inference is even more suspect when we see the impact which this inference has on s. 6(1). Section 6(1) reads "Where an order has been made

12 _ 1 2 _ for proper maintenance and support, a judge, upon application at any subsequent date, may..." This suggests the question of who the applicant for variation will be. One would certainly have anticipated that an applicant for variation would include a dependant of the testator who has previously been granted an order. However, if only downward variation is permitted, a dependant with an order will be one person who will never be an applicant for variation. The heart of the Act is contained in s. 2 and under it an application can only be made by or on behalf of a dependant. It would seem to be a strange interpretation of the variation power to exclude the successful dependant under s. 2 from being an applicant for variation unless the words of the statute coml.-_:.ied such a peculiar result. It is my opinion that the words of s. 6(1) do not require such a perverse conclusion. Section 6(1)(b) states a Judge may "inquire into the adequacy of the provision ordered". The quality of being adequate surely implied primarily a consideration of whether the order is sufficient in amount but might also with more difficulty be applied to the issue of whether the initial order is now more

13 - 13 -than adequate. Section 6(1)(c) states that a Judge may "discharge, vary or suspend the order". If a Judge has only the power to reduce an order under s. 6, the use of the word vary is inappropriate. Vary implies both an upward or downward adjustment. If the Legislature had intended only a downward adjustment, s. 6(1)(c) should have read "discharge, diminish or suspend the order". However, upward variation will only be feasible where, as in this case, there are assets not yet distributed at the date of the variation application. I would conclude on the basis of the plain meaning of the statute that s. 6 confers upon a Judge the power to increase or diminish an order and that the application for variation can be brought by a dependant who has been successful in obtaining an initial order. Plain meaning is not perhaps a very firm basis upon which to build an argument because, if anything is clear about the interpretation of statutes, it is that statutes have very different plain meanings to different people...

14 - 14 His annotation also includes a discussion of the Interpretation Act R.S.N.S. 1967, c. 151, 58 which instructs the Judiciary to adopt a purposive approach to the interpretation of statutes....the Legislature in the Interpretation Act R.S.N.S. 1967, c. 151, s.8 has instructed the judiciary to adopt a purposive approach to the interpretation of statutes. Section 8(5) states: Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters: (c) (d) the mischief to be remedied; the object to be obtained; (f) the consequences of a particular interpretation.' Such an approach to the interpretation of the Testators' Family Maintenance Act seems to require a recognition that the function of the Act is to provide adequate maintenance to dependants of testators. In many instances, the initial order provides for periodic payments out of the

15 - 15 -estate. In these days of high inflation, a periodic award which is adequate today will soon become inadequate. The value of the order made in Mrs. Maldaver's favour in 1977 had by 1982 been so eroded by inflation that, in real terms, it was worth only approximately 50 per cent of its 1977 value. It is no answer to say as Hallett J. has done that "The decrease in the purchasing power of the Canadian dollar affects both the income and the residuary beneficiaries" In this case the contingent residuary beneficiaries are grandchildren who will be alive at the death of the survivor of the two named daughters. Under the Nova Scotia statute, dependant means only the widow, widower or child of the testator. Grandchildren are not dependants. Therefore, the benefits of the grandchildren under the will should be reduced to the extent necessary to permit adequate provision to be made for dependants. The narrow construction given to the power of variation contained in s. 6 will cripple and confine the purpose of the statute should the court continue to order periodic payments in nominal dollars out of estates. Hallett J.'s interpretation of s.6 is not the purposeful

16 - 1 6 approach which the Interpretation Act mandates. My own conclusions are that if the concept of equity or morality is to play any part whatsoever in the decisions rendered under the Testators' Family Maintenance Act as decided by Mr. Justice Nunn in the Cox case above and by Chief Justice Cowan in the Maldaver case [No.1] in 1977, surely a daughter of the testator who has fallen upon hard times is more worthy of remedial consideration than a grandson who has a contingent interest only, who is reported to be financially independent and who had probably never seen the testator more than once or twice in his lifetime. As to Mr. Justice Hallett's comment that "the decrease in the purchasing power of the dollar affects both the income and the residuary beneficiaries" I contend that the so-called "Even Hand Rule" perhaps never contemplated a trustee capitalizing surplus income (as in the Maldaver case) to augment the coffers of the remainderman but rather involves the astute investing of a certain percentage of the capital assets of the trust fund in equities or growth stocks for the benefit of such remaindermen and of course to the detriment of the life beneficiary. I further contend that if the courts are inclined to do a "Post Mortem Estate Planning" effort as indicated at the beginning of this dissertation, then such changes or amendments should

17 conform to the common and established practice in most well drafted wills which in the vast majority of cases similar to the one under consideration the entire income from a trust fund would either be left to a child or children of the testator or the trustee would have a discretionary power to disburse such income on behalf of the child or children. As to other minor provisions of the Act, it might be noted that there is a limitation period for making an application for relief under Section 2 of the Act. Section 13(1) states that an application for an order under Section 2 may not be made after the expiration of six months from the grant of probate of the Will or of administration with will annexed. Nevertheless subsection (2) thereof permits a judge, if he consider it just, to allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application. It is also to be noted that there is a restriction on the time for distribution of an estate (See Section 8) and a provision to prevent a dependant contracting out of ever making an application for relief under the Act - Section 15(2). Such a promise or agreement is not binding upon the dependant. And of course, an appeal from any order made under the Act lies to the Appeal Division of the Supreme Court of Nova Scotia.