Tag: Unconventional Wills
The Victorians consigned themselves to more subtlety in their works of entertainment than we at present do. To all appearances, theirs was decidedly not an age capable of enjoying rap music and HBO comedies. The spiciest themes in their art, therefore, would include marriage intrigues, duels, financial scandals – or, as we see in George Eliot’s Middlemarch – controversial wills and eccentric testators.
The wills and estates subplot in Middlemarch is comprised of all the ingredients that you may see in a modern legal drama: a rich and erratic miser (Mr. Featherstone) manipulating his relatives with implied promises of future bequests; the idle protégée (Fred Vincy) who accumulates debts with the idea that the testator will bail him out; concern over the testator’s attachment to his young caregiver (Mary Garth); a train of impoverished relatives ill-concealing their greedy expectations; and much discussion on why “blood” was deserving and why “strangers” were not.
It is remarkable how little has changed in a century or so with respect to wills and estates. Then, as now, a Mr. Featherstone who promises a bequest, receives consideration, and then goes back on his word, may be found to have broken a binding contract – as occurred in Legeas v. Trusts & Guarantee Co. Likewise, a ruling of unjust enrichment (Moore v. Sweet) or specific performance (Folsetter v. Yorkshire & Canadian Trust Co.) could be made against him/his estate.
Still relevant today are the challenges of undue influence and incapacity. In the story, the scheming relatives are alarmed at Mr. Featherstone’s connection to Ms. Garth. She, all too aware of an undue influence allegation, refuses her patron’s money and ignores him when he orders her, while on his deathbed, to destroy his wills. In return, he throws his cane at her, which is perhaps evidence of incapacity.
Much as we may laugh at the relatives in Middlemarch who repeatedly visit Mr. Featherstone to remind him of his obligations to his “own flesh and blood”, our own law continues to ascribe significance to bloodlines. The Succession Law Reform Act defines “child” based upon conception, and the statute’s intestacy provisions speak of “issue” and the “nearest degree” of kindred. As many an adopted child and step-child knows, with respect to estates law, blood still matters.
There are some marked differences between Eliot’s England and modern Canada. Whereas Fred Vincy was loaned money in part because the creditors knew he was favoured by Mr. Featherstone, we now have businesses openly and explicitly offering advances to those who “have an inheritance coming”. Although we still use the Banks v. Goodfellow test for evaluating capacity, there have been some innovations, such as capacity assessments done after death and more nuanced, neuroscientific understandings of capacity. Lastly, if Mr. Featherstone had died in Ontario in 2020, he could not take as much comfort in tantalizing relatives and then crushing their hopes, for we have dependency support laws whereby testators must provide “adequate provision” for their “dependents”. Perhaps the creation of such laws was influenced, in part, by the ghoulish conduct of such Victorian literary characters.
Thank you for reading. Enjoy the rest of your day!
Suzana Popovic-Montag and Devin McMurtry.
While the majority of people use their wills to provide for their friends and family after they have passed away, some take their wills as an opportunity to creatively leave their mark in their passing.
In today’s blog, we will look at three cases of bizarre will provisions and their outcomes.
Comedian, Jack Benny was married to his wife, Mary Livingstone, for nearly 50 years. While Jack was known to the public for his television persona of being stingy and terrible at playing the violin, Jack was quite the romantic to Mary. When Jack died in 1974, he left a provision in his will that one red rose was to be delivered to Mary every day for the rest of her life.
In a magazine article written by Mary in memory of Jack, it seems as if Jack’s wishes were carried out. Mary stated that “every day since Jack has gone, the florist has delivered one long-stemmed red rose to my home.”
Real estate investor and hotel owner, Leona Helmsley, died in 2007. Leona was dubbed the “Queen of Mean”. Leona’s will stated that a $12 million trust was to be established for her Maltese dog named “Trouble”. Leona excluded two of her grandchildren from her will but included $10 million for two of her other grandchildren on the condition that they regularly visit their father’s gravesite.
Trouble’s inheritance was reduced to $2 million by the court, with the remaining balance going to Ms. Helmsley’s charitable foundation. While the loss of income may have been upsetting to Trouble, it may also have come as a relief as there were reports that the dog was forced to go into hiding after a reported threat to kidnap her.
Sam Weir, who was a retired lawyer, stipulated in his will that $3,500 was to be held in trust for the Law Society of Upper Canada. He directed that each year, the income from the trust was to be paid to the student who graduated from the Bar Admissions Course with the lowest marks. His reasoning behind this was that he knew many lawyers who became successful by “keeping their lack of knowledge in the dark.”
Sam strongly recommended that the recipient of the funds spend it on a “night on the town.” If the Law Society accepted the gift, Sam provided that it would receive an additional $10,000 to be spent on a series of lectures named the “Weir lectures”.
The Law Society declined the gift on the basis that it was not charitable.
Although adding an unconventional provision in your will might be tempting, doing so is risky as the provision could be declared invalid for a number of reasons such as uncertainty, impossibility of performance, public policy and more. If you do find yourself wanting to add a unique provision in your will such as the testators above, it is best to discuss it with a lawyer. Even retired lawyer, Sam Weir, could have benefited from such a discussion.
Thanks for reading!
Suzana Popovic-Montag and Celine Dookie
To read about some more unconventional wills, check out these blogs: