366 THE ADVOCATE
VOL. 80 PART 3 MAY 2022
court to analyze the facts of each case to determine whether and to what
extent a will must be varied to make adequate, just and equitable provision
for the claimant. A similarly contextual analysis may be applied in considering
whether a good conscience constructive trust ought to be imposed over
assets where it would be unconscionable for them to be beyond the reach of
a wills variation claim. Rather than being viewed as overly general and
uncertain, the flexibility of the good conscience constructive trust should be
seen as a great advantage, aligning with the consideration of contemporary
social values that animates a wills variation claim as required by Tataryn.
In the writers’ view, it is open to a court to find that good conscience
requires the imposition of a constructive trust over property where a willmaker
has deliberately avoided their obligations to surviving spouses or
children by structuring their affairs so that the property in question would
otherwise not be available to satisfy a wills variation claim, and where this
result would be unconscionable. To address floodgate and uncertainty concerns,
we propose the following criteria in order to invoke the concept of
a good conscience constructive trust in the context of a wills variation
proceeding:
1. an inter vivos transfer of assets;
2. that removes those assets from being available to satisfy a wills
variation claim;
3. the presence of unconscionable circumstances such that the court
cannot in good conscience allow the transfer to stand, having
regard to the “contemporary values of society” as set out in Tataryn;
and
4. the absence of any indication that a constructive trust would have
an unfair or unjust effect on the defendant or third parties.
The first two criteria of the proposed test are straightforward: claimants
need only show that there has been an inter vivos transfer that removed
assets from being available to satisfy a wills variation claim, such as by gift,
transfer into joint tenancy or settlement of a trust. These are objective tests.
The third criterion is more complex, requiring proof of “unconscionable”
circumstances. The concept of unconscionability may be understood as
involving a high degree of perceived unfairness, and while flexible enough
to accommodate myriad situations, it is not novel. For example, it has long
been established that a contract may be set aside on the basis of unconscionability.
46 Determining unconscionability in the contractual context
requires consideration of “whether the transaction, seen as a whole, is sufficiently
divergent from community standards of commercial morality that it