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should be rescinded”.47 Judicial consideration of the “contemporary community
standards” in wills variation claims, as directed by Tataryn, in the
search for unconscionability is therefore appropriate, and the concept of
“unconscionability” may be tailored to the estates context, as has occurred
in family law matters.48
In the writers’ view, the fact that the third criterion of the proposed test
may admit diverse circumstances is consistent with the flexibility of the
constructive trust and with the discretion of the courts in wills variation
matters where the more amorphous nature of moral obligations, as opposed
to strictly legal claims, is not seen as an impediment to establishing a claim.
As with the courts’ analysis of a will-maker’s moral obligations, consideration
of whether it is shockingly unfair for will-makers to divest their estate
of assets may not be as uncertain as might appear at first instance. As in all
wills variation cases, courts will be guided by contemporary social values.
Canadian societal consensus appears to be, for example, that it would be
unconscionable to allow a parent to disinherit a child and strip them of their
wills variation rights based on the parent’s disapproval of their child’s sexual
orientation or gender identity. Similarly, it would shock the conscience of
most people for a parent to leave nothing to their child and to structure their
estate to avoid the child’s wills variation claim following a history of abuse.
In these situations, a constructive trust might attach to the assets that the
will-maker intended to remove from the ambit of a wills variation claim.
Focusing the inquiry on “unconscionability” is in keeping with the historical
development of the constructive trust as being imposed where good conscience
requires, and serves to limit its availability in the wills variation
context to situations of manifest injustice.
Although the foregoing instances represent examples that we argue are
sufficient for equity to intervene, one wonders whether all that is necessary
for a constructive trust to be imposed is for a will-maker to deliberately
deprive a good faith wills variation claimant of a statutory remedy intended
to serve a social purpose. One could see, for example, counsel crafting arguments
that it ought not be necessary to show egregious conduct such as
abuse or discrimination. Instead, it may be argued to be sufficient to engage
the conscience of the court for a will-maker to intentionally undermine
“one of the links in the Government’s chain of social welfare legislation”.49
There will no doubt be considerable room for argument as to how far the
constructive trust remedy should be applied to address will-makers’ divesting
their estates of assets.
The fourth criterion, being the impact on third parties, also serves to mitigate
any significant “floodgate” concerns. A constructive trust would not be