November 6th, 2017 by Nancy Ling

I have met with many clients in order to help them set down their final intentions. A person’s last will and testament can occasionally be as unique as the people who make them. While there is nothing wrong with leaving a personalized will, or making certain specific requests in your will, I would always recommend that you get legal advice before including elaborate or creative wills clauses, as you want to make sure they will be effective.

When considering what to put in your will, you must consider whether it is likely to trigger a claim to vary your will under wills variation legislation. It is a question of whether your will makes fair and adequate provision for your spouse and children.

You should also consider whether the provisions of your will are enforceable. If a clause in your will is against public policy or violates Canadian values, it would not survive a challenge in court. This is a moving target, as public policy and national values are always evolving. As well, our Canadian values do not always line up with a person’s cultural traditions or values. Take the example of certain cultural traditions that would dictate that only sons should inherit. Another example of this moving target is the fact that it used to be against public policy to include children born out of wedlock in a will, as it was seen to encourage immoral behaviour. That has of course changed in modern times.

Generally speaking, clauses in a will that are discriminatory (for example, a homosexual son may only inherit if he marries a woman) or that seek to hinder a person’s legal rights, will not be enforceable. It may go without saying, although it does come up from time to time; provisions in your will are also unenforceable if they direct a person to do something illegal or something that is impossible.

Another example of an unenforceable clause in a will is one that prohibits a child or a spouse from exercising their legal rights to challenge the will under wills variation laws. These clauses generally try to make the inheritance conditional on the beneficiary not bringing a challenge, or in the alternative, directing the executor to exhaust the estate funds in defending the challenge in court. Our government has decided that it is a matter of public policy that maintenance and support should be provided for a person’s spouse and children. Spouses and children of a deceased therefore have a legislative right to contest an unfair will, and it would be against public policy to allow a will maker to take away that right.

Whether or not your wishes will be enforceable is only one part of putting together an effective estate plan. You will also want to consider whether your last will and testament will have the desired effect. Depending on how we own our assets (for example joint tenancy, corporate assets, or registered funds with designated beneficiaries) we will also need to look at things beyond the will to set up an effective estate plan. The best advice is to take the time to talk to an estate planning lawyer to make sure that your estate plan will speak for itself, when you are no longer able to.