Public Policy Revisited

September 5, 2012 Hull & Hull LLP Ethical Issues Tags: 0 Comments

In determining whether a testamentary document is valid, one must consider whether there are any conditions found within the testamentary document that are contrary to public policy.  In other words, in order to determine the validity of a condition, one must look to the beneficiary to determine whether he or she must perform an action that is contrary to the interests of society.  If a condition requires such an action, it may be deemed void on public policy grounds.

Whether a condition is found to conflict with public policy seems to be a recurring theme in our blogs, one of which dealing with interfaith marriage can be found here, and another of which dealing with pets can be found here.  However, an area which has received less attention is the requirement that, in order to benefit under a last will and testament, one must marry a person of the opposite sex.

A recent article in the New York Post, found here, deals with a grandfather, Frank Mandelbaum, who left in his will a requirement that, in order for any of his grandchildren to benefit under his will, his son, Robert Mandelbaum, a Manhattan (New York) Criminal Court Judge, must be married to the child’s mother within six months of the child’s birth.  Frank had done this with full knowledge that his son had a partner of the same sex.

In Canada, the courts have traditionally drawn a distinction between two types of conditions.  The first type imposes a general restraint on marriage and has been deemed to be contrary to public policy [see: Re Cutter (1916), 37 O.L.R. 42, 31 D.L.R. 382 (H.C.)].  The second type of condition imposes a partial restraint on marriage, and has been upheld, provided the condition is reasonable in the circumstances.  Examples of the latter include conditions against remarriage, or against marriage to a named person.

It is clear that the condition imposed upon Robert is not a general restraint on marriage, as it clearly allows him to marry his child’s mother.  Thus, the condition likely falls into the latter category as imposing a partial restraint on marriage.  Given this, is such a condition reasonable in the circumstances?  How much of our current views on same-sex marriages should affect public policy?  In the UK House of Lords decision of Blathwayt v. Baron Cawley, [1975] 3 All E.R. 625 (H.L.), Lord Wilberforce states:

“…I do not doubt that conceptions of public policy should move with the times…”.

Regardless of what your stance is on the validity of Frank’s condition, from a legal perspective, it will no doubt be of interest to see how the courts balance their duty of upholding the law while promoting public policy.

Thank you for reading.

Suzana Popovic-Montag

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