What is the test for a will variation based on the failure to make adequate provision for the maintenance and support of a spouse or child?

The parties agree on the applicable legal principles. Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807 is the leading case about will variation based on the failure to make adequate provision for the maintenance and support of a spouse or child. In that case, the court was urged to return to a “needs-based” analysis which had dominated the common law at one time. But the court concluded the legislation’s inclusion of the broad wording -- “adequate, just and equitable” -- is incompatible with a strict needs-based approach.

The court also rejected the argument (based on the historical origins of estate legislation) that the primary purpose of ensuring the proper maintenance of spouses (at the time, only women) and children was to prevent them from becoming charges on the state. The argument was that Walker v. McDermott, 1930 CanLII 1 (SCC), [1931] S.C.R. 94 created uncertainty in the law when it introduced the notion of “moral duty” as a basis for ensuring equitable and just provision for women and children; the court disagreed and said any uncertainty in the law did not have to be addressed by reverting to pre-Walker jurisprudence: If the phrase "adequate, just and equitable" is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is "adequate, just and equitable" in the circumstances of the case.