Rights of excluded parties

(a) What are the legislated rights in Nova Scotia for a claim by a spouse or a child to the estate of a spouse or parent?

Summary

A dependant (spouse or child) of a deceased may apply to the Court for discretionary relief where the deceased’s will does not make adequate provision for proper maintenance and support, regardless of the closeness of relationship between the dependant and the testator.

Discussion

In Nova Scotia, dependant relief is governed by the Testators’ Family Maintenance Act, RSNS 1989, c 465 (the “NS TFMA”), and the Matrimonial Property Act, RSNS 1989, c. 275 (the “NS MPA”). Pursuant to s. 3(1) of the NS TFMA, a dependant may apply to the court for relief from the estate not otherwise granted in the will:

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.

The definition of dependant includes the widow(er) and child(ren) of the testator. Common-law spouses are not considered dependants for the purposes of the Act and may not make a claim for relief unless they have registered as Registered Domestic Partners pursuant to the Vital Statistics Act, RSNS 1989, c 494. Additionally, only the natural or adopted children, or those en ventre sa mere are considered dependants (s. 2(b)); a child to which the testator was in loco parentis is not a dependant.

In Nova Scotia, testators have a moral obligation to provide for dependants regardless of the closeness of the relationship between the testator and the dependant (see Corkum v. Corkum, (1976), 18 N.S.R. (2nd) 50 (S.C.A.D.), Jones v. Jones’ Estate (1993), 125 N.S.R. (2nd) 263 (S.C.), Walker et. al. v. Walker Estate (1998), 168 (2nd) 231 (S.C.), and Nova Scotia (attorney General) v. Lawen, 2021 NSCA 39.

An application for relief must be made within six months of the date of the grant of probate, subject to the discretion of the court to extend the deadline (see Smith v. Hunter (1993), 126 N.S.R. (2nd) 254 (S.C.).

Note that a judge has the jurisdiction to impose conditions and restrictions under s. 6(1) of the NS TFMA and can provide for support to be paid by way of a trust under subsection 6(2).

(b) What are the dependants relief rules in Nova Scotia - can life insurance proceeds paid to a named beneficiary be “clawed back” to satisfy a dependant’s claim?

No.

(c) Do stepchildren of the deceased who are not legally adopted have any rights to challenge the will?

Summary

Children who were not legally adopted by a deceased are not entitled to a share of the estate of the deceased unless named in the will.

Discussion

In Nova Scotia, an unadopted child is not entitled to the estate of a deceased stepparent unless named in the will.

In the intestacy context, ‘issue’ of the intestate is entitled to a portion of the distributive share. An unadopted child is not entitled to a portion because they do not fall within the definition of ‘issue’ at s. 2(a) of the NS ISA: “all lawful lineal descendants of the ancestor.”

In the dependant relief context, a ‘child’ of the intestate may apply for relief. An unadopted child is not so entitled because they do not fall within the definition of ‘child’ at s. 2(a) of the NS TFMA:

2(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.

(d) Can the validity of a will be challenged for reasons such as lack of capacity and undue influence?

Summary

Yes. Under the Probate Act and the NS Wills Act, a person with an interest in the estate may challenge a will on four bases: (1) the will was not validly executed; (2) lack of testator capacity; (3) undue influence; and (4) fraud. A dependant may challenge the will pursuant to dependant’s relief legislation.

Discussion

In Nova Scotia, a person with an interest in the estate may challenge a will pursuant to Probate Act, NSN 2000, c 31 (the “NS Probate Act”). Section 31(1) of the NS Probate Actthen requires the propounder of the will to prove the same in solemn form:

31(1) A court may hear a will proved in solemn form and determine the validity of the will where an application asking the court to do so is made by a person interested in the estate of the testator either before or after a grant is made with respect to the will but not after the expiration of six months from the grant.

A person with an interest in the estate may challenge the will on four bases: the will was not validly executed per NS Wills Act s. 6; capacity (viz. the testator did not have adequate mental capacity to approve the will); undue influence (viz. a will made not by the testator’s volition); and fraud (viz. a bequest induced by deception).

Finally, the disposition of property described in a will may be adjusted ex post facto pursuant to dependant’s relief legislation (See discussion above). On this basis, a dependant widow(er) or child(ren) could make a claim that has the effect of changing a will.