A great uncle passes away, leaving $1 million to his nephew. But that nephew must marry within two weeks to receive it.
He goes on a mad hunt to find a bride, and actually lands his dream woman.
But she gets upset when she finds out about the inheritance. Queue a melodramatic scene where he proves his love for her—not the money—and they all live happily (and comfortably) ever after.
While stories like this seem more apt for the big screen, they can happen in real life—minus the music and shining lights.
So if your client is an heir who must abide by a wacky clause within a will, how can he contest it?
Read: Estate planning checklist
It all boils down to what’s fair. If society would find a certain condition unacceptable, the court may rule it invalid on the basis that it’s against public policy.
Beneficiaries need to know, however, that contesting a will comes with risks. If the courts deem the condition in the will invalid, the beneficiary might either get the whole gift or lose everything, says Margaret O’Sullivan, principal of O’Sullivan Estate Lawyers in Toronto.
Examples of invalid conditions include asking a person to:
- divorce his or her spouse;
- never marry;
- commit a criminal act; or
- behave in a manner contrary to human rights legislation.
Meanwhile, conditions that are typically valid—if worded correctly—include asking a person not to:
- re-marry;
- marry without someone else’s permission; or
- dispute the testator’s will on the basis of alleged lack of mental capacity.
Read: What not to do in estate planning
Case-by-case
One of the most commonly upheld conditions is an age restriction.
In Canada, once you’re an adult you’re legally entitled to your gift.
However, some people feel 18 is too young to handle money so they include a gift-over clause with an age restriction, explains Charles Ticker, a Toronto estate lawyer. This makes it harder to dispute the restriction because it transfers the gift to someone else if the beneficiary doesn’t reach the stipulated age.
Read: Shield your clients’ estates
But if your client is set on contesting this clause, he may want to cite Saunders v. Vautier. That ruling stated that if every other beneficiary is an adult and agrees to changing the condition, they can challenge the will in court.
If the court allows it, the condition will be moot, says Daniel Dochylo, partner at the Toronto office of Borden Ladner Gervais (BLG).
This ruling has also been used as precedent for contesting other conditions.
Find out which other conditions by clicking through below.
