The Rule Against Public Policy
Ruling from the grave is not something new to estate lawyers and to their clients. However, the court has drawn the line on certain conditions imposed by testators as going "too far". One type of condition that has been viewed this way by the courts includes conditions that are against public policy. If a condition is found to be against the best interest of the public, the condition is said to be contrary to public policy and is subsequently declared void.
Few would disagree that a condition which would require a beneficiary to commit a crime or commit any other act prohibited by law, in order to receive a gift, would be contrary to public policy. Clearly, it is in the public’s best interest for the court to intervene in order to prevent a testator from including such a condition in their will. However, less clear is the situation where one who prepares their Will adds a condition that their children may not inherit if they marry out of their faith.
In the Illinois Supreme Court, the case of In re Estate of Max Feinberg 2009 III. LEXIS 1299, the Court upheld a clause which sought to preserve the testator’s 4,000 year old heritage in respect of the Jewish faith by providing that upon the testator’s death, a grandchild who married outside of the Jewish faith shall be deemed to have predeceased them and therefore, shall not take under the Will. At page 24, Justice Garman stated, "[a]lthough those plans might be offensive to individual family members or to outside observers, Max and Erla were free to distribute their bounty as they saw fit and to favo[u]r grandchildren of whose life choices they approved over other grandchildren who made choices of which they disapproved, so long as they did not convey a vested interest that was subject to divestment by a condition subsequent that tended to unreasonably restrict marriage or encourage divorce".
The reasoning used by the Illinois Supreme Court seems to mirror that of the famed Lord Wilberforce, who in the UK House of Lords decision of Blathwayt v. Baron Cawley  3 All E.R. 625 (H.L.) stated that using public policy to make void a condition based on religion, "…would bring about a substantial reduction of another freedom, firmly rooted in our law, namely that of testamentary disposition".
It is worth noting a distinction though that not all cases based on religious testamentary freedom are premised on the same idea. In Canada Trust Co. v. Ontario Human Rights Commission (1990), 74 O.R. (2d) 481, at paragraph 14, a trust document created a scholarship that excluded, "…all who are not Christians of the White Race, all who are not of British Nationality or of British Parentage, and all who owe allegiance to any Foreign Government, Prince, Pope, or Potentate, or who recognize any such authority, temporal or spiritual".
In Canada Trust Co., at pp.495-496, Robins J.A. states, "[t]he concept that any one race or any one religion is intrinsically better than any other is patently at variance with the democratic principles governing our pluralistic society in which equality rights are constitutionally guaranteed and in which the multicultural heritage of Canadians is to be preserved and enhanced."
Given the above, the Courts are clearly presented with two varying types of religious-based testamentary clauses. With Canada being a proponent of multiculturalism, it will be interesting to see how the Courts tackle these types of cases.
Ian Hull – Click here for more information on Ian Hull.