What is the test for variation of a Will?

The leading case on variation of Wills is Tataryn v. Tataryn, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807, which departed from a strict needs-based test and held that “adequate, just and equitable” refers to two norms that must be addressed in testamentary dispositions: legal and moral obligations. Moral obligations are “. . . found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards”: p.821. In deciding whether to vary a Will and to what extent, a court must attempt to balance testamentary autonomy with the testator’s legal and moral obligations. In Tataryn at 823-824, McLachlin J. stated: In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provided for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.