Tag: creative wills
As we head towards the holiday season, it is a good time to think about the past. The weather is drab and the days are short, too, so we have ample opportunity to curl up in cozy chairs – rum and eggnog in hand, perhaps – to read old books, watch history documentaries, or otherwise reminisce of that which came before us. In line with this, in today’s blog we examine a case from 1919, Muirhead Estate, Re, which includes a decision that is both intriguing and continuously relevant for estate planning.
The deceased had left a widowhood clause in his will, by which he sought to discourage his widow from marrying another. Remarry, however, she did, in the event of which the executors of the Muirhead Estate applied to the court for directions as to the construction of the following clause:
“If my wife shall remarry the share hereby bequeathed to her shall revert to my estate and be divided among my said children.”
The court had to determine if the clause violated public policy, for even in 1919, conditional gifts “in general restraint of marriage” had long been against public policy. It found that there was a distinction between a restraint of marriage and a restraint of remarriage. The former was clearly grounds for voiding a clause, but the latter was legally valid. In particular, restraining the “second marriage of a woman” was an established exception to the public policy rule. As for the second marriages of men, the court found that these may have still fallen under the umbrella of public policy, but it did not explain or elaborate why.
One hundred years hence, we see from cases such as Goodwin and Brown Estate that the decision in Muirhead Estate, Re, is still good law – though the distinction of second marriages of men and women is in all likelihood obsolete. According to the public policy rule, you cannot, through conditions in your will, prevent a beneficiary from marrying; nor can you promote marital breakdown through such conditions. If, however, you think that your widow looks best in perpetual black finery, or you have a distaste for suitors characteristic of Odysseus, the law likely allows for you to include a widowhood clause in your last will.
Happy planning – and thank you for reading!
Suzana Popovic-Montag and Devin McMurtry
If you’re a regular reader of obituaries, you’ve undoubtedly seen some creative writing touches in remembering a departed family member. While traditional obituaries are still the norm, humour seems to be creeping into more of these tributes – especially those written by the deceased person in advance and published upon their death. You’ll find some great examples here.
While creativity in obituary writing has few, if any, negative repercussions, the same isn’t true for creativity in the will drafting process. While Canadians generally enjoy wide testamentary freedom to dispose of their property in any manner, it’s not an absolute freedom. For example:
- Succession laws can require that your will provide financial support for those who are dependant on you, such as a spouse or minor children.
- Provisions in your will that are against public policy and offend societal values (such as gifts that are racist, sexist, or require someone to do something against their beliefs – or against the law) can also be set aside.
All to say, if you want to do something quirky or creative in your will, make sure you get legal advice before finalizing it. Here are a couple of examples that passed the test. They’re from other countries, but would likely pass the test in Canada as well.
Giving to strangers
In Portugal, Luis Carlos de Noronha Cabral da Camara was the son of an aristocrat, but had no family and few friends. When he wrote his will in 1988, he chose 70 strangers at random from the Lisbon phone directory to receive his fortune. When he died in 2001, the shocked strangers each received several thousand euros.
Careful when you open that next tube of Pringles
Frederick Baur was an American chemist who invented and patented Pringles potato chips and the innovative Pringles tube. He died in 2008 and had stipulated that his remains be buried in a Pringles tube. While Baur’s ashes exceeded the capacity of a single container, some of his remains were indeed placed in a Pringles tube and buried, along with the rest of his ashes in a more traditional urn.
So, by all means, have some fun with your will and your final requests. Just make sure your lawyer has given you the “two thumbs up” before you execute it.
Thanks for reading!