What is the testator's family maintenance under the Testator's Family Maintenance Act?

British Columbia, Canada


The following excerpt is from Berger (Re), 1978 CanLII 325 (BC SC):

The leading case in Canada on relief under the Testator's Family Maintenance Act is Walker v. McDermott, 1930 CanLII 1 (SCC), [1931] S.C.R. 94, [1931] 1 D.L.R. 662, in which Duff J. (later C. J.C.) gave the judgment of the court. I reproduce the oft cited passage from the judgment at pp. 95-96, as follows: "The provision which the court is authorized to make in the circumstances stated in the section, is, 'such provision as the court thinks adequate, just and equitable.' The conditions upon which this authority rests are that the person whose estate is in question has died leaving a will, and has not made, by that will, in the opinion of the judge, adequate provision for the 'proper maintenance and support' of the wife, husband or children, as the case may be, on whose behalf the application is made. "What constitutes 'proper maintenance and support' is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare necessities of existence. For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had. If the court comes to the decision that adequate provision has not been made, then the court must consider what provision would be not only adequate, but just and equitable also; and in exercising its judgment upon this, the pecuniary magnitude of the estate, and the situation of others having claims upon the testator, must be taken into account."

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