If you have school-aged children, you have undoubtedly heard of the ironclad playground rule “no take-backs”. Siblings often relish in reminding one another of the rule after a cherished possession has been passed along, much to the donor’s instant regret. In the schoolyard, children who dare to renege on a promise are subject to the righteous indignation of their peers.
In estate law, we see this scene play out when a testator enters into an agreement that provides that he or she is prevented from revoking his or her will. The testator subsequently changes the will in breach of the agreement and upon the testator’s death, it is argued that the testator is prohibited from doing so.
The question thus arises: can a testator, by agreement, effectively imbue his or her will with an irrevocable designation, contrary to the principle that a will remains revocable until death? According to Feeney’s “Canadian Law of Wills”, “A will is revocable even when it is expressed to be irrevocable and even if the testator covenants not to revoke it. In no circumstances will equity grant an injunction to restrain the testator from revoking his or her will.” Accordingly, a valid agreement, in which a testator has agreed not to revoke his or her will, cannot render a will irrevocable and does not prevent the testator from making subsequent changes. However, although the will itself remains valid, there are recourses available to the disappointed beneficiary.
If a will is revoked in breach of a contract that provides otherwise, the testator or estate may be held liable in damages or, in certain circumstances, specific performance may be granted. Alternatively, an equitable remedy such as unjust enrichment or quantum meruit may be available. It is important to bear in mind that this does not allow for a will (or a portion of a will) to be declared void. As the Ontario Court of Appeal held in Frye v Frye Estate (2008 ONCA 606), “[…] a contractual obligation to make or to refrain from revoking a will gives rise to an action for breach of contract and does not affect the validity of the will itself.”
This approach is in contrast to the one taken in some civil law jurisdictions. For instance, in Quebec, the Civil Code provides at article 706, “No person may, even in a marriage or civil union contract, except within the limits provided in article 1841, renounce his or her right to make a will, to dispose of his or her property in contemplation of death or to revoke the testamentary provisions he or she has made.” This provision is one of public order and a clause in a contract (aside from an irrevocable gift mortis causa made in a marriage contract) that attempts to do this may be deemed null and void.
Thank you for reading.