Quote:
Originally Posted by Locke
Fair enough, but in this case hasnt the Judge assumed a superior morality and then forced it upon the personal wishes of a dead man?
Has he not, in this case, effectively said that what the deceased has done does not conform with his morality and then altered the contract to adhere to that stated morality despite the fact that what the deceased did was legal?
I see it as a difference between morality and legality. The Judge is there to uphold the latter, not the former.
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The Act has instructed the Court to consider what is "adequate, just and equitable". This implies moral standards, and there must be a body of cases in BC (and SCC) that define what this means.
http://www.disinherited.com/articles_variation.htm
Tataryn v Tataryn 3 E.T.R. (2d) 229 S.C.C.
In determining what was "adequate, just and equitable in the circumstances" pursuant to s. 2(1) of the Act, the Court was required to consider testator's legal and moral obligations.
Under s. 2(1) of the Wills Variation Act, the court must ask itself whether the will makes adequate provision and if not, make an order that is adequate, just and equitable. Testamentary autonomy must yield to that which is “adequate, just and equitable” in the circumstances judged by contemporary standards. Spouses and children are entitled to an equitable share of an estate even in the absence of need. Both the testator's legal and moral obligations must be addressed. Legal obligations are those which the law would have imposed on a person during his or her life were the question of provision for the claimant to have arisen. Maintenance and property allocations which the law would support during the testator's lifetime should be reflected in the court's interpretation of what is adequate, just and equitable in the circumstances after the testator's death. Moral obligations are society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. Most people would agree that a strong moral obligation exists for a supporting spouse to provide for a dependent spouse or dependent adult child after his death, if the size of the estate permits. Even independent adult children should receive some provision if the size of the estate permits and in the absence of circumstances negating the obligation.
Where the estate permits, all these conflicting claims should be met. Where priorities must be considered, claims based upon legal obligations should take precedence over moral claims. The testator's freedom to dispose of his property should not be interfered with lightly, but only in so far as the statute requires.