'Freedom of Testation and Family Claims in Canada' by Alexandra Popovici and Lionel Smith in Kenneth G C Reid, Marius J de Waal, and Reinhard Zimmermann (eds),
Comparative Succession Law III (Oxford University Press, 2019)
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This paper explores the ways in which Canadian legal orders address the tension between freedom of testation and the claims of the family of the deceased.
The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. Under federal law, a different regime governs succession in relation to many members of First Nations.
At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. Under those regimes, where a claimant has standing, the jurisdiction of the courts to intervene in the testator's chosen distribution is highly discretionary. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. In Quebec, by contrast, the courts and the Civil Code bear the imprint of a longstanding commitment to freedom of testation. Quebec law aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible.
In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.
'Birmingham v Renfrew (1937): The Foundations of the Mutual Wills Doctrine' by Ying Khai Liew in Brian Sloan (ed),
Landmark Cases in Succession Law (Hart, 2019)
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This paper discusses the facts of Birmingham v Renfrew and the impact of the decision on the development of the mutual wills doctrine in Anglo-Australian law. Much like laying the secure foundations of a building, Birmingham has supplied three central ‘pillars’ upon which the doctrine has gradually been built upon, and upon which the future development of the doctrine can securely be based. The three ‘pillars’ are: the interaction between ‘contract’ and equity, the meaning of ‘contract’, and the rationale of the mutual wills doctrine.
'A Will for Willa Cather' byThomas Simmons in (2018) 83(2)
Missouri Law Review comments
In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.
Artists hold their creative works dear: whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Directing particular uses of property from the grave can be met with several objections. The objections sound in alarmist responses to ‘dead hand control’ and include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints on alienation. This Article considers these and other recurring objections in one particular context and with one particular variety of creative works: an author’s unpublished and private letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts (which can be enforced by the state attorney general’s office). Instead, a private “enforcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced; a testamentary trust hypothetically created under the terms of the Last Will and Testament of the celebrated American author Willa Cather.
