Advocate Jan 2014

24 VOL. 72 PART 1 JANUARY 2014
THE ADVOCATE
ticular events occur or when specified time periods elapse test the patience
of beneficiaries. Estate assets that are not distributed to beneficiaries for a
number of years are normally managed by third parties with little or no
input from beneficiaries. Resentments can arise if non-vested beneficiaries
believe that a will-maker is trying to “rule from the grave”.
Fourth, some contestants of a will take legal action in the hope that a
judge will look outside the document for evidence of a will-maker’s intentions.
3 Other contestants hope that a judge will decide that intent is to be
derived solely from the text of the will. 4 In Re Rowland, 5 Lord Denning
summed up this latter approach, with which he did not altogether agree: “It
is not what the testator meant, but what is the meaning of his words.” The
possibility that a judge may be either an intention-seeker or a textualist can
spur parties to legal action.
Fifth, the once-in-a-lifetime aspect of an estate distribution presents
aspiring beneficiaries with a singular opportunity for financial gain. What
took years to accumulate can be accessed all at once. In most cases, contestants
of a will have much to gain in the event of success and little to lose in
the event of failure.
Statutory Law
The common law of wills was well settled when Sir Henry Theobald wrote
his treatise on wills in the 1800s. 6 Thus the common law of wills developed
prior to the awakening in our time of a social conscience. It is not surprising
that statutory modification became necessary. To borrow phraseology
from A Connecticut Yankee in King Arthur’s Court, 7 some of the ruts of the
common law, worn deep by time and habit, needed to be diverted.
Of the various statutory modifications to the common law of wills, the
most far-reaching has been dependants-relief legislation. This was introduced
in Canada in the 1920s. 8 This legislation has spawned a further body
of case law which now represents an important subsidiary part of the Canadian
law of wills. The leading case of Tataryn v. Tataryn Estate, 9 decided by
the Supreme Court of Canada in 1994, considered 23 cases on dependantsrelief
legislation. Since 1994, many more cases have been decided under
the various provincial counterparts of the legislation.
In delivering the judgment of the Supreme Court of Canada in the
Tataryn case, Madam Justice McLachlin (as she then was) described the
statutory narrowing of will-makers’ rights:
The absolute testamentary autonomy of the 19th century was required to
yield to the interests of spouses and children to the extent, and only to
the extent, that this was necessary to provide the latter with what was
“adequate, just and equitable in the circumstances.” 10