Legal And Moral Obligations IN Wills Variation Actions
The Supreme Court of Canada, in clarifying the principles to be applied, in the Tataryn case ( see footnote 1) referred to two societal norms which provide a guide to what is “adequate, just and equitable” in the circumstances of each case.
The Court discussed two types of obligations:
(1) legal obligations, which are the obligations which the law would impose on a person during his or her lifetime were the question of provision of the claimant to arise;2 and
(2) moral obligations, which are society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.3
With respect to legal obligations, maintenance and property allocations which the law would support during the testator’s lifetime should be considered. Where provision for a spouse is in issue, the testator’s legal obligations, while alive, may be found in the Divorce Act, family property legislation and the law of unjust enrichment, which may be enforced by the imposition of a constructive trust.
The legal obligation of a testator may also extend to dependant children and does extend to minor children, and, in some cases, the principles of unjust enrichment may indicate a legal duty toward a grown, independent child by reason of the child’s contribution to the estate.
Where priorities between conflicting claims must be considered, claims which would have been recognized during the testator’s life should generally take precedence over moral claims.