"If anyone should presume to break or violate this will, may he bring upon himself the curse of almighty God and may he remain bound under the anathema of 318 fathers and over and above this, he shall pay over to my executrices five (5) pounds of gold and may this document, my will, remain in force."

So read the last article of the last will and testament of Marco Polo, the intrepid Venice explorer of the Mongol Empire, who died in 1324.

Not a modern example of a do-not-contest clause but a colorful example nonetheless and one which shows that testators, have since time immemorial, tried to protect their wills from attack, even from the grave, by declaring in advance what punishment might be meted upon anyone so brash.

The law has an uneasy relationship with clauses in wills that set out retaliation against any beneficiary that might oppose the will because it discourages not just the gold diggers, but also the bona fide concerns.

For example, in Marco Polo's case, his will was not signed by him, an issue of concern for those who may have felt, later, that the will was unfair, or that the absence of his signature demonstrated an advanced state of sickness, perhaps too far to form the necessary mental frame of mind. Again, in the case of Marco Polo's will, he had been prescient enough to call upon a notary to draft his will and under Vienna law at the time, a notary's certification that the testator so much as touched the will, then stood in lieu of the testator's signature.

contest a willIn the early years of the common law, such clauses that punish persons for doing certain act, were the norm.

How else could you prevent, from the grave, a daughter from marrying a Protestant, Roman Catholic or a Muslim?

And if you wanted your widow to remain dressed in black forever, what better than to have her bequeath given to her on condition that she not remarry?

The law called these types of intimidation clauses in terrorem which means, quite literally, in terror. In fact, the term so permeated the legal jargon that from time to time, you will see the term used in the law reports not in relation to a will, but in relation to a legal argument that the court feels is brought more to chill or intimidate, than to persuade.

It was open season for private discrimination and bullying from the grave: freedom of contract - freedom to distribute one's estate in the fashion one wanted to, political correctness be damned.

Gradually, asked to enforce some outrageous in terrorem clauses, the law began to squirm.

The first protest emerged in the seventeenth century as did a compromise: such clauses would be taken as idle threats, and void, unless there was a gift over (real property excepted).

From Theobald on Wills:

"But if there is a gift over, these (in terrorem) conditions are effectual, the gift over being considered sufficient evidence that they were not meant to be in terrorem merely."

In other words, any restriction, if it stood alone against a bequeath, was void and the beneficiary took outright and was not bound to whatever conduct was required, or prohibited, by the in terrorem clause. In terrorem clauses would also be void if they were not attached to specific chattels 1

At the same time, another concurrent development in the common law had an important effect: public policy. Judges were showing that they were prepared to strike down sections or contracts or wills that offended public policy. On this basis, the more egregious of in terrorem clauses were struck, such as those which required the commission of a crime or some other illegal act or, for example, prohibiting a beneficiary from joining the armed forces, or encouraging a person to separate from her lawful husband. Another quirky example is the Canadian lawyer and testator Charles Millar who left his fortune to the woman who could have the most babies in a ten year period!

But other than those significant restrictions, if the testator set up his will so that in the in terrorem clause was breached, the bequeath in question would go to a third-party (i.e. a gift over), the law upheld the clause.

The do not contest clauses straggled the border between attracting the interest of public policy and freedom to contract. The law rightfully worried that legitimate legal challenges to a questionable will, or its contents, would be scared-off. As late as 2002, Williams on Wills, 8th edition, was advising that according to the common law:

"A condition not to dispute a will is not void for uncertainty, nor as being contrary to good morals or public policy, nor prohibited by any positive law...."

In 1926, and there are many other example, in Hodgson v Halford, a British court upheld an in terrorem clause that had a gift over, that shifted a bequeath from the first intended beneficiary to another if the first changed his religion. At the time, there was no §9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms:

"Everyone has the right to freedom of thought, conscience and religion."

Thus, the common law appears to be in an unsatisfactory state of affairs best demonstrated by this incongruous statement taken verbatim from the venerable Theobald on Wills, with each proposition having its own army of cases from the law report:

"A condition not to dispute a will is valid in law if the will is unsuccessfully disputed.... On the other hand, a condition not to institute legal proceedings touching the estate and effects divided is too general and is bad."

In Bellinger, and in pristine legalese, Justice Hood tried to articulate the common law and what had become known as the in terrorem doctrine:

"The gift must be accompanied by an effective gift over which vests in the recipient on the condition being breached. If there is no gift over, then the condition will be treated as merely in terrorem, that is a mere threat, and will be found to be void. And nothing short of a positive direction of a gift over, of vesting in another, even in the case where the forfeited legacy falls in the residue, will suffice. There must be an express disposition made of what is to be forfeited."

In 1982 (Re Kent), Justice Lander of the British Columbia Supreme Court had before him a modern incarnation of what Marco Polo had in his will, with all the fire and brimstone a good solicitor could muster on behalf of his client:

"9. I HEREBY WILL AND DECLARE that if any person who may be entitled to any benefit under this my Will shall institute or cause to be commenced any litigation in connection with any of the provisions of this my Will other than for any necessary judicial interpretation thereof or for the direction of the Court in the course of administration all benefits to which such person would have been entitled shall thereupon cease and I HEREBY REVOKE all said benefits and I DIRECT that said benefits so revoked shall fall into and form part of the residue of my Estate to be distributed as directed in this my Will."

Walking on eggshells, a beneficiary inquired with the court whether she might still make an application to vary the will pursuant to wills variation statute in regards to dependents of the testator, hoping that in doing so, she would not lose her bequeath.

Justice Ladner recognized the clause in question as screaming in terrorem. He added:

"... the challenge (being) made that §9 is a clause in terrorem, such a condition attached to a legacy of personalty may be void if made in such a manner. There are three criteria which must be met before the doctrine in terrorem is applicable: the legacy must be of personal property or blended personal and real property; the condition must be either a restraint on marriage or one which forbids the donee to dispute the will; (and) the threat must be idle; that is the condition must be imposed solely to prevent the donee from undertaking that which the condition forbids. Therefore a provision which provides only for a bare forfeiture of the gift on breach of the condition is bad."

Justice Ladner concluded that the in terrorem clause was not void in regards to any objections on his list. But then he reached into his public policy bag of tricks and declared:

"It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a testator to circumvent the provisions of the Wills Variation Act by the creation of such as §9. It is important to the public as a whole that widows, widowers and children be at liberty to apply for adequate maintenance and support in the event that sufficient provision for them is not made in the will of their spouse or parent."

In 2003, the warning bell rang out to all provincial solicitors when Justice Hood of the British Columbia Supreme Court issued his reasons in Bellinger. Again, a nice piece of solicitor work ran against an old judge's grain:

"7. IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to."

In light of wills variation statutes, Justice Hood, like his brother Ladner before him, held the do-not-contest clause (§7) void as against public policy and in one fell swoop, all lawyers and notaries in the jurisdiction received a practice bulletin telling them that do-not-contest clauses were out.

And so, each concerned citizen, wishing either to emulate Marco Polo's will, or defeat a do-not-contest in terrorem clause, will have to consider the law in their respective jurisdiction. Sadly, it is an area where the legislature is content to leave to the slow and unpredictable evolution of the lex non scripta, rather than deal with the issue with the sharp, clear blade of lex scripta, statute law. In the result, the rule of law, common law roots notwithstanding, becomes a meandering stare decisis path, disparate and inconsistent.

To quote the American bard Sam Walter Foss who wrote of highway planners that follow old, inefficient horse paths:

"They follow in the beaten track,
And out and in, and forth and back,
And still their devious course pursue
To keep the path that others do."

REFERENCES:

  • Bergreen, L., Marco Polo: From Venice to Xanadu (New York: Knopf Publishers, 2007)
  • Duhaime, Lloyd, The Stare Decisis Path
  • Duhaime, Lloyd, Wills and Estate Law
  • Duhaime, Lloyd, Wills Variation For Dependants in Canada
  • Kent v McKay 13 DLR 3d 318 (1982); also at 13 ETR 53
  • Martyn, J., and others, Theobald on Wills, 16th Ed. (London: Sweet & Maxwell, 2001)
  • Note 1: Further distinctions exist in the event the in terrorem clause is designed as a condition precedent or a condition subsequent but that analysis exceeds the scope of this article.
  • Re Millar (1938) 2 DLR 164
  • Re Pashak Estate 1 DLR 1130 (1923)
  • Sherrin, C., Williams on Wills, 8th Ed. (London: Butterworths, 2002), page 356-358