Testamentary freedom against provisions for families : the evolution of dependents' relief legislation, with particular emphasis on the Province of British Columbia, as a flexible restraint on testamentary freedom
Creators: name: Amighetti, Leopold
Publisher: name: University of British Columbia
Year: 2010

description: The concept of testamentary freedom has traditionally been associated with the law of succession in jurisdictions with legal regimes based on the common-law system. This concept became subject to abuse and dependents of deceased testators were sometimes left to the mercy of the community for their support. New Zealand was the first jurisdiction to counteract this abuse by introducing in its law, dependents' relief legislation which, essentially, acted as a flexible restraint on testamentary freedom. This concept retained the traditional testamentary freedom, yet, the courts were given the authority to remedy any abuses of such freedom. The Canadian common-law provinces through a period of sixty-four years have adopted legislation similar to that enacted in New Zealand. In Canada, the concept has worked, on the whole, well. Many Canadian jurisdications have, through the years, adjusted their original legislation to meet what appears to be contemporary norms. The province of Ontario has undertaken extensive reform, and to a certain extent, has attempted to reconcile the provisions of succession law with that of matrimonial property rights. The province of Ontario appears to have achieved some degree of harmony between the two legal concepts. The province of British Columbia on the other hand, although the issue has been the subject of a study and a Report of the Law Reform Commission of British Columbia, has retained the legislation as originally enacted in 1920. The jurisprudence has, however, interpreted the statute with such inconsistency that the statute has gone beyond its remedial purpose and has been interpreted as a form of forced heirship. This interpretation cannot be supported by the wording of the statute, nor by its historical intent. This thesis surveys the various enactments commencing with the one in New Zealand, the progenitor statute, and continuing with those of the Canadian provinces and finally, the U.K. statute. There is also a general comparison of contemporary legislations. The jurisprudence in British Columbia is analysed from the enactment of the legislation and the shifts that the courts have undertaken over the past sixty-eight years are considered. In addition to the philosophical defect of the B.C. legislation, certain technical deficiencies are also considered. The present law of Ontario, which has been the subject of extensive reform, is analysed and compared with that Province's previous legislation as well as that of the province of British Columbia. The effect of the present state of law interpreting the British Columbia legislation is such that it can be said that as it stands, it has outlived its social utility and requires review to meet contemporary social norms. The general recommendation is that dependency be a condition precedent to an application for relief, and that the spouse be entitled as of right, in any event, to half of the family assets. The investigation for this thesis consisted, primarily, of analysis of the legislative debates, appropriate statutes and the applicable jurisprudence interpreting such statutes.