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I do, I will.

Norman Rockwell's 1955 painting, Marriage License, depicts a handsomely dressed pair of fiances, attending at the town clerk's office to obtain the document that will authorize their marriage. In the image, the bride-to-be stands on tiptoe in elegant white heels to reach the top of a majestic wooden rolltop desk, where she completes, with marked deliberation, the requisite paperwork. Her eyes are fixed on the fountain pen she holds in her gloved hand. Her future husband stands adjacent, clutching his fedora in a hand that rests protectively on her waist. He is tall, but leans in, such that his chin rests beside her head, watching with appreciation as his fiancee inscribes a document that is likely the marriage license application.

The about-to-be married couple is enraptured in this administrative endeavour. They exude serene energy, but the sense of purpose they bring to this task is plain, as is the subtle, but deep, current of affection that runs between them.

The couple's attentive and intense presence contrasts sharply with the image offered by the third person in the painting, the town clerk. The clerk is a senior gentleman, slouched in his seat on the opposite side of the rolltop desk. His hands are folded loosely on his lap and he looks away, averting his gaze from the fiances. A cat, his own perhaps, meanders by the base of his chair. His state is one of indifference and impatience.

In Marriage License, the clerk represents the state's presence in the formalization of marriage. It is through his administrative work that the licence will be issued, allowing the couple to marry. Relying on Rockwell's imagery, we might understand the state's perception of marriage as banal, and its formalization as a tedious or trivial task.

Family law scholars will be aware, however, that any such suggestion about marriage does not bear out in the state's family governance frameworks, where marriage occupies a central role. The legal constitution of marriage has been subject to critique (1) and reform, marked especially in Canada by its opening to couples of the same sex. (2) But monogamous marriage weathers criticism and change with resolve, retaining its persistent place at the core of the family within both juridical and social frames. Insofar as relationships between adults are concerned, marriage wields the most powerful juridical impact, imposing bilateral rights and obligations automatically, without attention to the quality of the spousal bond or spouses' lived realities. (3) Moreover, these rights and obligations may endure beyond the duration of the spousal relationship, subsisting after the dissolution of a marriage or the death of a spouse. (4) Although a duty of support exists within unmarried spousal partnerships in all provinces and territories except Quebec, and property-sharing regimes are in place for unmarried couples in some provinces, these regimes do not attach the moment the relationship begins, as in the case of marriage. (5) Rather, the relationship must meet criteria specified by relevant legislation, which typically includes continuous cohabitation for a set period or the shared parentage of a child.

The rights and obligations that marriage triggers can subsist in the face of intentions and contracts designed to resist the effects of otherwise applicable legal norms. In Quebec, for example, marriage contracts that meet required formal elements cannot rearrange the mandated sharing of the family patrimony between married or civil union spouses set out by the Civil Code. (6) Moreover, spouses in any province or territory will face a considerable onus in defending and upholding a premarital or separation agreement subject to legal challenge. Recent judicial analyses on the topic have stressed the importance of giving legitimacy to spousal efforts to arrange their joint affairs by mutual agreements marked by procedural and substantive fairness. But this same thread of jurisprudence also distinguishes domestic agreements from commercial contracts, subjecting the former to a wider ambit of judicial review, even in cases not marked by unconscionability or bad faith. (7) A married spouse can therefore extricate himself or herself from marriage, but not necessarily from its consequences, even where he or she has endeavoured to convey his or her intentions in this respect via contract.

One might expect to find Rockwell's marriage clerk's expression of disengagement with matrimonial processes and status reflected with greater pronunciation within the law of wills and estates. In that area of law, individual intentions and freedom are given primacy. As a result, it may seem logical to anticipate marriage as bearing less relevance and as generating fewer effects than in the law respecting inter vivos rights and obligations between family members. More precisely, successions law--and more precisely, testamentary successions law--casts itself as governed primarily by individual will rather than by familial duties. Although circumstances of intestate succession are determined largely by presumed affections to one's married spouse and kin, (8) where a valid will exists, its articulation of a testator's intentions are crucial and prima facie determinative as to the dissolution of his or her estate. In that scenario, the testator's civil status should bear little impact on questions about devolution and inheritance.

Accordingly, the contrast between marriage's place within wills and estates law and that within family law is ostensibly rich. Although the dominant discourse in wills is one of testamentary freedom and the primacy of the testator's unilateral juridical act, no comparable pretense exists in family law. Private ordering within family relationships can occur, but this takes place against a backdrop of default spousal entitlements and clear judicial power to override private juridical acts. This being said, the law of wills also centralizes marriage and positions it at the hub of this legal domain. The governance of wills and estates portrays marriage as the most critical bond for any testator, such that a testator's presumed affections rest primarily with his or her spouse, rather than lineal relatives. (9) Various doctrines therefore endeavour to preserve it from outside interference, while protecting entitlements uniquely for married spouses. (10)

This article seeks to draw out the way in which the protection of marriage and of married spouses, particularly as conventionally understood--that is, formalized by marriage, between spouses of two different sexes--is one of successions law's central ambitions insofar as testamentary devolution is concerned. This emphasis on marriage adversely affects individuals who order their intimate, private lives outside of the institution's formal parameters. Moreover, special protections accorded uniquely to formalized relationships, especially to married couples, in estates law displaces the presumed primacy of testamentary freedom, or giving effect to testamentary intention, long understood as successions law's backbone. The essential character of testamentary freedom emerges most plainly in judicial discussions regarding the interpretation of wills. Remaining true and giving effect to a testator's intention is characterized as a court's "duty", (11) and "the golden rule, the fundamental principle" of estates law. (12) The primacy of testamentary freedom, although restricted by certain modern successions law doctrines, (13) persists in contemporary law. While evidenced primarily in the common law tradition, (14) it exists in Quebec civil law, the Quebec Act of 1774 having preserved in that jurisdiction full freedom of testation. (15)

The intense relevance accorded to marriage within wills and estates law encroaches on individuals' ability to organize their estates according to their true intentions and to the relationships to which they actually ascribe the most value. This may be of no consequence where the deceased's most prized relationship was that maintained with his or her married spouse. But emphases on marriage may be at odds with efforts to create kinship through testamentary dispositions, affirming through a will relationships that lack formal recognition. (16) Juridical neglect of these relationships yields disparate effects for those who are single, those who share bonds of intimacy with more than one other person, and those whose most important relationships do not reflect marriage-like qualities. (17) The centralization of marriage within the governance of testamentary successions reinforces the constructed divide between "legitimate and illegitimate relationships". (18) This in turn discourages "relationship diversity", debases crucial social bonds that fall outside of marriage, and rationalizes policy decisions that starkly discriminate against those who cannot or choose not to marry. (19)

Given this fallout, the moment may be opportune for jurists to revisit assumptions about coupledom and marriage as lying "at the beginning of our most ethical, most rational thoughts", (20) at least in the domain of wills and estates. The consequential policy argument would not call for revoking or curtailing entitlements afforded to married partners, which have gone to lengths in recognizing and protecting the interests of vulnerable spouses, especially women. Rather, the goal is to foreground the discriminatory ramifications of an exclusive concentration on marriage. It is further to suggest a move toward other, more inclusive regimes in the law of wills, which would recognize relationships of intimacy and support that fall outside of marriage both in form and function. The particular manner in which reform to successions law, which accounts more fully for relationship diversity, may be carried out does not form part of this article's scope. It is worth underlining, however, that insight as to effective methodologies for such reform may be gleaned from authorities that endeavour to give effect to the substantive nature of adult interdependent partnerships, while departing from preoccupations with formalism and conjugality. These authorities perceptively suggest that a focus on economic, emotional, and social support, rather than intimacy and formal bonds, facilitates a more principled methodology for recognizing a fuller range of close interpersonal relationships. (21)

This article begins in Part I with an analysis of legal authorities illuminating the way in which wills and estates law prizes and values the institution of marriage. This part describes successions law's efforts to preserve the integrity of marital relationships, primarily through jurisprudence developed in connection with testamentary gifts rendered conditional on a beneficiary's civil status. The article proceeds in Part II to consider the way in which the law of wills protects married spouses as heirs. This protection is robust and hints at a supposition that testators value their relationships with spouses above any other human connection. The final Part III describes the content of the spousal relationship as conveyed through legal rules and doctrines within the law of wills and estates. The analysis here reveals the expectations that inhere to spouses and their relationships with one another, as communicated through juridical authorities deriving from the domain of wills and estates. It further highlights the potential risks assumed by those who survive their partners within un-formalized, interdependent relations.

Before pursuing these lines of inquiry, a preliminary note is offered with respect to this article's terminology and scope. This work concentrates on "wills and estates law", that is, statutory and judge-made rules that determine the transfer of property through unilateral juridical acts, notably wills and codicils. It brackets legal regimes governing intestate succession. The focus here on wills and estates is rationalized by this article's goal of contrasting testamentary freedom with the overriding juridical significance of marriage. The article draws on examples from Western common law jurisdictions (primarily Canada) and on the civil law of Quebec. Moreover, while spousal relationships considered here focus on marital unions, there will be some contemplation of marriage-like relationships, that is, interdependent conjugal partnerships. The differential treatment offered within the law of wills and estates to married and unmarried conjugal partners, and the significance of this disparity, will be addressed in the discussion that ensues.


Wills and estates law shows an interest in preserving individuals' freedom to make decisions about their own nuptial relations without interference imposed by terms within testamentary instruments. It further expresses disquiet about wills that might encroach upon or threaten relationships between married spouses. These observations can be drawn most readily from case law commenting on testamentary gifts that are made conditional on a beneficiary's marital status. Courts called upon to evaluate such gifts will not suffer lightly a testator's efforts to meddle with a beneficiary's marriage or incite its dissolution. Conditions linked to civil status may consequently be subject to declarations of invalidity on public policy grounds.

More precisely, conditions that restrain marriage are eyed suspiciously as potentially motivated by an effort at dead-hand control over a beneficiary's behaviour. The common law may characterize such conditions as in terrorem clauses. Viewed as contravening public policy, they will be severed from the will, allowing any gift to which they attach to pass without encumbrance. (22)

Alternatively, testamentary gifts subject to clauses that prohibit or restrict marriage may be viewed as malum in se or malum prohibitum. In either case, the condition contravenes public policy, in the former because a clause is inherently wrong, in the latter because the condition breaches a legal rule, "statute or the like." (23) The outcome of finding a condition malum in se differs from concluding that it is malum prohibitum. Conditions malum in se cause the entire gift to fail, resulting in a loss for the beneficiary, whereas those deemed malum prohibitum are struck and allow the gift to pass free and clear of the condition. In Re McBride, (24) the court was required to construe a testamentary gift to the testator's son, which was rendered conditional on the son not being married to a person named in the will. The son was already married to this person at the time the testator drafted his will. Consequently, meeting the condition precedent would have required the beneficiary to terminate his marriage. The condition was declared invalid for being malum prohibitum and was struck down, allowing the gift to pass unencumbered. This characterization of the McBride condition as malum prohibitum, rather than malum in se, suggests the existence of a juridical rule favouring the protection of the marriage from outside interference. (25)

The foregoing principles also find expression in Quebec's private law. Article 757 of the Civil Code of Quebec indicates that impossible conditions or conditions that violate public order are "deemed unwritten." (26) This provision proceeds to name, as an example of a condition against public order, "a clause limiting the rights of a surviving spouse in the event of a remarriage or new civil union". (27) This language suggests that it is not marriage per se that the Civil Code shelters from restrictive conditions but instead, marital freedom, especially that of a survivor spouse. The Code accords a testators widow or widower explicit assurance that his or her marriage rights will not be compromised by his or her spouse's will, and that any attempt in this respect will be met with judicial declarations of the restrictive conditions nullity. (28)

Yet the overarching framing of article 757 indicates that nuptial freedoms are not protected for the survivor spouse alone. All testamentary conditions counter to public order are deemed unwritten. This provision therefore could substantiate the severance of conditions that seek to curtail a beneficiary's liberties, including freedoms with respect to marriage. (29) In consequence, any beneficiary--be they a survivor spouse or any other person--may contest a testamentary condition aimed at curbing his or her choice and liberty with respect to marriage.

That being said, the specification of "spouse" within article 757 alludes to law's view of marriage as special, and of the married spouse as meriting particular protections to which a non-spouse would not be entitled. While the provision limits the testator spouse's testamentary freedom, it preserves the interests of his or her survivor spouse. This particular underscoring of spousal interests within article 757 is consistent with a trend, apparent in other doctrines discussed here, reflecting relatively heavy-handed judicial intervention in testamentary dispositions that compromise the testator's own marriage and survivor spouse. By contrast, judicial approaches to conditions that affect "third-party" marriages--that is, between individuals who never maintained a spousal relationship with the testator--are more conservative.

A court's eagerness to intervene in testamentary conditions that pertain to marriage and the spousal relationship wanes, however, where it can trace these conditions to a valid testamentary goal. In such circumstances, testamentary freedom and intention are accorded more weight in judicial analyses. This is best exemplified in cases where a testator stipulates that a gift to a beneficiary divests when he or she remarries. The condition may stand if the estate can establish that the testator did not intend to dissuade remarriage overall, but sought instead through this condition to secure support for the beneficiary until he or she remarried, at which point he or she would presumably benefit from his or her new spouses obligations of spousal support. (30)

Similarly in Quebec civil law, a will that includes a condition linked to the beneficiary's civil status may be upheld as valid. The outcome will, however, hinge upon how a court characterizes testamentary intent. A condition that distinguishes according to the beneficiary's marital status may be deemed to interfere with that individual's rights under the province's Charter of Human Rights and Freedoms. (31) By contrast, where a condition stipulates a qualified rather than a blanket limitation on marriage, that condition may survive judicial scrutiny. For instance, a gift that divests on a beneficiary's marriage may be understood to stem from a testamentary goal of preserving the estate for one's heirs. In that context, the condition subsequent may be tolerated. (32) Courts will differentiate between such conditions, viewed as bearing an underlying intent that resonates as logical and morally sound, with those that merely "constitute a 'jalousie posthume' or a 'tyrannie posthume'." (33)

Fundamental to the analysis is the exercise of tracing testamentary intention. Where a court identifies the testator's goal to be benign or laudable, such as shielding the estate from erosion or appropriation by non-heirs, a condition may stand. Yet where felicitous testamentary objectives are not apparent and a condition distinguishes, without apparent, acceptable rationale, according to the beneficiary's civil status, that condition will be suspiciously viewed and vulnerable to annulment. The circumstances offer an example of juridical dilution of testamentary freedom in an effort to preserve marital integrity.

A greater degree of ambiguity emerges in connection with testamentary conditions that hinge upon the social or cultural identity of a beneficiary's prospective spouse. In these circumstances, a testator has not rendered a gift conditional on a beneficiary's civil status alone. Rather, the condition expresses a qualified forfeiture that hinges on the religious or ethnic identity of the beneficiary's spouse or, less frequently, endeavours to police the beneficiary's sexual and intimate relationships.

While tethering testamentary entitlements to matters of ethnicity or gender may offend juridical and moral sensibilities, courts have been reticent to characterize such conditions as violations of public policy. Early analyses instead concentrated on whether the restrictive clause was framed with sufficient precision and clarity to give it effect. Thus, a challenge to a gift benefitting successors who observed the Jewish faith and who married wives "of Jewish blood" was assessed on the basis of uncertainty rather than public policy. (34) The House of Lords upheld the condition, finding that a rabbinical authority could discern whether a beneficiary had met the terms of the gift. The judgment did not consider the will's propensity to interfere with the beneficiaries' freedom in marriage nor its alignment with public policy. (35)

A second, more recent case (36) called upon the Illinois Supreme Court to determine whether a gift within a testamentary trust made conditional on a beneficiary's marriage to a Jewish spouse should be struck down as a public policy violation. Heirs adversely affected by the condition argued that its terms were prone to incite divorce among beneficiaries already married to non-Jews, and therefore contravened public morals. The argument failed. The court distanced the circumstances before it from cases in which a testator's intent to control beneficiaries' decisions about marriage lay at the core of a conditional gift. In contrast, the court found that the disposition on which it had to rule was governed by a testamentary goal of rewarding descendants "whose lives most closely embraced the values [the testators] cherished." (37)

Scholars of the Canadian law of trusts will be aware of the apparent clash between this outcome and the Ontario Court of Appeal's earlier decision in Fox v Fox Estate. (38) In Fox, a testamentary executrix had encroached fully on the capital of her late husband's estate pursuant to discretion offered by the terms of his testamentary trust. In so doing, the executrix had sought to deprive her son from inheriting from his father given that he had married a non-Jew. While the decision does not deal with Fox's will, the judgment affirms that counsel in this appeal "were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith." (39)

The Illinois Supreme Court's reasoning suggests an alternate outcome. That judgment, while not binding on a Canadian court, might offer a compelling basis upon which to uphold a testamentary condition that ties a beneficiary's entitlement to his or her spouse's cultural or religious identity. A Canadian court inclined to render such a judgment would find support in some early domestic authorities. (40) Nevertheless, as noted elsewhere, (41) contemporary notions of public policy in Canada are guided by Charter-enshrined human rights values, (42) which might rationalize judicial interventions that curb testamentary freedom in these cases. In the result, conditions that communicate disdain or intolerance toward a particular religion, rather than an effort to preserve one's own faith values, may be viewed as engaging a public interest. (43)

Few cases squarely address conditions that would disinherit or limit the testamentary entitlements of a beneficiary based on his or her sexual identity or his or her spouse's gender. Early wills that hinted at such conditions were met with judicial acceptance. This was true even when impugned conditions were plagued by vagueness and uncertainty, and therefore might have been easily rationalized as void without having to venture into public policy analyses. (44) In one 1953 case, (45) however, the High Court of Justice in the United Kingdom struck down as uncertain a testamentary condition that caused a gift to lapse if the testator's daughter maintained a "social or other relationship" with a particular woman named in the will. The court held that the notion of "relationship" in this context was too nebulous, especially since it could not be construed as "marriage". As one scholar notes, the decision is less progressive than the holding alone might imply. (46) The reasoning hinges on the construal of the beneficiary's same-sex relationship as outside the ambit of what is certain, orthodox, or even imaginable insofar as intimate partnerships are concerned.

How would a testamentary gift rendered conditional on the gender of a beneficiary's spouse fare today before a court in common law Canada or Quebec? More precisely, would public policy's reach extend so far as to curtail testamentary freedom in such a setting? These queries do not yield ready answers. Yet the body of jurisprudence considered above, which addresses testamentary conditions that tie a beneficiary's entitlements to his or her civil status or the religious identity of his or her spouse, offers guidance. Where such a condition is identified as anchored to a tolerable testamentary goal, it is likely to survive a challenge. For example, evidence that a condition is rooted in a testator's faith-based objection to same-sex marriage might allow the condition to withstand judicial scrutiny. Without compelling proof of a tolerable testamentary rationale, however, a condition that discriminates is vulnerable to attack.

Part I has demonstrated how the law of wills' preoccupation with preserving the integrity of marital freedom and the marriage relationship emerges through judicial responses to conditional bequests that constrain freedom of marriage. The body of jurisprudence developed in this context reflects three critical points worthy of underlining. First, this area of law is unqualified in its effort to defend marriage against testamentary interference in the form of conditional gifts. In other words, legal analyses depend only on whether a formal marriage exists; no legal authority directs a court to investigate the nature or duration of the spousal relationship in determining whether a condition that affects the marriage should stand. The reader will find a comparable formalistic understanding of marriage within the doctrine of revocation, which is discussed in Part II.

Second, while the discussion here advances this article's thesis regarding the primacy of marriage over testamentary freedom, the analysis also reflects a tempered concern in regard to marriage in the present context. That is, courts will not intervene with any restraints on marriage. Rather, the law of wills and estates is concerned with conditions that purport to limit marital freedoms or interfere with a marriage relationship, which do not reflect a legitimate testamentary goal. It is in such circumstances that testamentary intent gives way to the interest of preserving marriage.

Finally, the discussion in this part differs from that which follows in that it addresses juridical efforts to preserve "third-party" marriage freedoms and relationships. Marriage as discussed in Parts II and III pertains to a testators own spousal relationship. In the context of conditional restraints on marriage, the unions at issue are those between beneficiaries and persons external to the family or the estate. This is important because within the overarching scheme governing testamentary successions, the objective of safeguarding survivor spouses' interests bears more legal freight than the goal of shielding a beneficiary's marriage from intrusive testamentary conditions. This distinction may explain the more tepid quality of the protection offered to beneficiaries affected adversely by conditions restraining marriage, particularly relative to the juridical protection afforded to a testator's survivor spouse. The latter point forms the focus of the discussion that ensues.


Just as the law of wills and estates depicts marriage as a critical institution worthy of preservation from outside interference, so too does law in this domain offer married spouses distinct and enhanced protection. The protection of married spouses' interests in the estates of their deceased partners is evidenced in various areas, but it is conveyed in an especially stark manner by the doctrine of revocation.

Wills can be revoked in two ways. The most evident and typical method is via the testator's own deliberate actions that have a direct bearing on a will and that convey his or her intention to withdraw the gifts made by that document. Consequently, a testator can create a document withdrawing his or her prior will, he or she can destroy his or her will physically, or he or she can write a new will that revokes--either explicitly or implicitly--his or her preceding will document.

A testator's marriage will also, in most jurisdictions, (47) revoke any of his or her prior wills. This principle may seem curious. Marriage is not ordinarily viewed as an expressly testamentary act, particularly in contrast with actions such as writing wills and codicils, or physically destroying such documents. Nonetheless, law presumes that a testator would not have intended to have a will crafted before his or her marriage stand once he or she is a married spouse.

The doctrine of revocation by marriage, although critiqued--60 years ago--as an "outmoded relic", (48) persists in contemporary law in an effort to protect married spouses. It operates to render inoperative a will made before marriage, regardless of whether that will named the spouse as a beneficiary. Naturally, however, a testator remains free to confirm his or her original testamentary intentions by reviving his or her will, or making a new will once married. A post-nuptial testamentary document would survive even if it disinherited the testators spouse. The latter would, however, have other recourses available to him or her, such as a claim to support from the estate through the regimes discussed in Part III below. Yet a testator whose marriage revokes a will and who does not revive or replace it will die intestate, allowing the survivor spouse to benefit through the generous entitlements preserved for him or her through statutory intestacy regimes. The doctrine therefore shields the interests of spouses while also serving as an emblem of the esteem in which marriage is held in the law of wills, as no other circumstance triggers will revocation by operation of law.

A noteworthy exception to the revocation-by-marriage doctrine applies to wills that expressly contemplate a future marriage. Where a will includes language to the effect that it is made in contemplation of marriage to a specific person, it will not be revoked by the testator's subsequent marriage to that person. These requirements are strictly applied, such that a will that states a general contemplation of marriage will become inoperative upon marriage if it does not name the particular future spouse. Moreover, it is not sufficient for particular gifts to be made in contemplation of marriage to a named individual. The will as a whole must reflect a testamentary frame of mind that contemplates marriage to the named, future spouse. (49) Failing this, testamentary liberty will be overridden by law's effort to secure protection for the married spouse. (50)

The effects of the revocation-by-marriage doctrine may, however, contradict the presumptions and goals on which it rests. Notably, the doctrine risks disinheriting a spouse who would have benefitted under a revoked will that afforded a more generous share of the deceased's estate than that allocated to spouses by intestacy regimes or a subsequent will. Applicable legislation may, however, allow the survivor spouse to elect to take under the will made prior to marriage and thus save that will from revocation. (51)

Conversely, the testamentary consequences of marriage can benefit someone who is arguably unworthy of benefitting from his or her spouses estate, barring statutory rules that would grant courts discretion to foreclose inheritance to such individuals. No such discretion is afforded in the common law. A beneficiary who has engaged in morally problematic behaviour toward a testator cannot be deprived of a benefit from the estate, the sole exception being cases involving a beneficiary responsible for the testator's death. (52) By contrast, Quebec civil law recognizes circumstances in which a beneficiary must be deemed unworthy of inheritance, and others in which the court holds discretion to make such a determination. (53) In the result, at least within the common law, the doctrine regarding testamentary revocation upon marriage does not afford discretion that would allow courts to resist applying the doctrine where doing so would seem untoward. The law applies without reference to the tenor of the human relationships concerned. The revocation-by-marriage doctrine has, however, triggered some academic commentary and critique with regard to marriages between elderly or vulnerable persons and their caregivers. (54) Such unions are sometimes termed "predatory" marriages, suggestive of the view that caregivers may opportunistically "prey" on the dependencies of those whom they look after with a view to appropriating the latter's wealth after death. The problematic nature of such marriages is heightened by the fact that although a testator may have the requisite capacity to marry, he or she may lack testamentary capacity, the test for capacity for marriage being considerably lower than that for will making. (55) Accordingly, a valid marriage will revoke a will but the person in circumstances of dependency may lack the ability to revive or remake his or her will. In the result, the spouse who may have exerted undue pressure on the testator to marry will bear the gains offered by intestacy regimes. (56)

The revocation doctrine also applies on divorce unless the testator expresses a contrary intention in his or her will. (57) Unlike marriage, however, divorce triggers the revocation only of gifts made specifically to a former spouse, severing it from the remainder of the will. Here again, law applies formalistically, and courts are generally deprived of the discretion to refrain from invoking the revocation-by-divorce doctrine based on evidence regarding the testator's intentions. Re Billard. Estate (58) starkly demonstrates this point. The case involved a testator who included a gift to his wife in a will he drafted after the couple had separated, but before their divorce. Because the testator did not confirm the will after the divorce, his bequest to his former wife was deemed revoked. The court found that it could not, according to the relevant statutory rule, consider evidence beyond the will's four corners to discern whether the testator intended to counter the revocation-by-divorce doctrine. It therefore did not account for the particular timing of the will drafting in this case (post-separation) or other evidence indicative of the testator's goal of benefitting his ex-wife despite their divorce. Consequently, the gift failed, plaguing the estate with a partial intestacy.

The foregoing discussion applies to spouses who have married. The revocation doctrine explained here typically does not extend to circumstances involving the initiation or termination of an unmarried conjugal partnership. While there is no constitutional requirement to treat married and unmarried couples alike for the purposes of applying the revocation doctrine, (59) legislation has extended this rule to cohabiting partners in some jurisdictions. (60) This suggests that the focus on formalized relationships is not rooted in efficiency. That is, determining when a marriage begins and ends is a neater exercise than discerning the start and end points of an unmarried spousal union. Yet this reality does not justify the restriction of revocation by marriage to formalized relationships, especially in view of law's recognition of spousal benefits for unmarried partners in a range of other contexts that require determinations of the relationship's beginning and termination. (61)

The general restriction of the revocation doctrine to circumstances involving formalized conjugal relationships signals the deep significance ascribed to marriage and divorce within the law of successions. Notably, these juridical acts convey assumptions about the centrality of the married spouse within an individual's testamentary intentions and objectives. The preeminent place of the married spouse and the protection the revocation doctrine affords remain steadfast regardless of the tenor of the marriage in question or evidence outside of the will as to testamentary intention. It is the formalized institution of marriage and status of being married, then, and not the quality or duration of the particular relationship, that found the survivor spouse's entitlements pursuant to successions law.

Marriage and divorce's conventional stature as the sole two juridical acts that operate to revoke testamentary documents or individual testamentary gifts for former spouses demonstrates the centrality of marriage and spousal relationships to successions law. As shown in this part, revocation of a will following marriage occurs regardless of proof as to testamentary intention. Moreover, a court may consider evidence as to testamentary intentions to preserve a bequest to a divorced spouse only where that evidence is expressed by the will document. The revocation doctrine thus illustrates how successions law's goals regarding marriage may supersede its commitment to effectuating testamentary intentions.

The revocation doctrine differs from the principles, examined in Part I, that apply to conditional bequests affecting marriage. In the latter context, law seeks to preserve a spousal unit from disturbance by a testamentary effort at dead-hand control over a beneficiary's private life. By contrast, the revocation doctrine does not aim to shield a marriage partnership. Rather, it is oriented toward extending protection to a survivor spouse who may have been omitted from his or her partner's premarital will. While this protection achieves important justice outcomes for spouses, its benefits reach a limited range of people. Those who are single or whose most intimate and emotionally proximate relationships fall outside of marriage are deprived of the revocation doctrine's benefits and protections. Thus, although the doctrine maintains its relevance in modern law, in an effort to avert its discriminatory effects based on choices about civil status and family structure, the propriety of widening its application seems plain.

The discussion that ensues considers another juridical doctrine directed at defending the financial interests of family members, including spouses. Where a prospective heir esteems that his or her entitlement pursuant to successions law is inadequately satisfied by the terms of a will or the applicable intestacy regime, he or she may initiate proceedings to claim support from the estate. Within this context, a "spouse" entitled to advance such a claim usually includes both married partners and partners who were in a "marriage-like" relationship. Moreover, these claims invite courts to integrate moral evaluations of the union to assess the merits of the claim. Legal rules within this domain confer upon courts greater discretion in their interpretation and application of relevant rules. As shown below, this has resulted in judicial reasoning that integrates instructive commentary as to successions law's appreciation of the content, or essence, of contemporary marriage relationships.


Legal rules that pertain to cases involving conditions restraining marriage or wills revoked by marriage apply without reference to the quality or substance of a particular spousal relationship. Courts may, however, be invited to consider this precise issue in cases involving support applications advanced by a survivor spouse. The procedure and substantive analyses for such applications differ among jurisdictions. In some places, these take the form of varying wills, while in others, they are framed as "dependants' relief" applications. Regardless of the particular format of the application, litigation generally originates from a claim that the testator's will does not satisfy a dependant's maintenance entitlements. Wills variation and dependants' relief are therefore means of correcting wills that fail to provide adequately for those who received, or were entitled to receive, support from the testator before the latter's death. These proceedings operate to shunt aside testamentary intent in an effort to preserve spousal and other dependants' entitlements.

In assessing claims on estates for support, courts first assess the identity of the individual advancing the claim and his or her relationship with the testator. Legislation typically restricts standing to advance such a claim to individuals who had particular familial relationships with the testator and who were support creditors before the testator died. (62) Once standing is ascertained, an analysis on the merits ensues. At this stage, relevant legislation generally attributes to courts a "broad discretion" (63) to assess whether the impugned will affords the applicant adequate and fair maintenance. In exercising this discretion, courts are called upon to examine both the legal and moral obligations that the testator held toward the applicant. (64)

Judicial decisions addressing these questions offer unique insight into the way in which the content or substance of the spousal relationship is imagined by the law of testamentary successions. More precisely, while doctrines governing conditional gifts illuminate the value the law of wills and estates ascribes to marriage as a social and legal institution, and rules on testamentary revocation highlight the protection afforded within this legal domain to married spouses, analyses regarding wills variation and dependants' relief are different. The latter analyses depart from broad characterizations of marriage as central, valuable, and worthy of legal preservation. Instead, they concentrate on the essence of married life, signaling norms about the distinct qualities that marriage, or marriage-like relationships, should bear in order to attract juridical recognition and respect, at least in the realm of wills and estates.

There are two particular paths through which judicial assessments of wills variation and dependants' relief applications offer a narrative about what the marriage relationship should embody. The first is via cases that assess whether an applicant qualifies as a spouse for the purposes of claiming support from an estate. A second context is found in judicial assessments of the merits of a survivor spouse's claim for support from an estate.

Legal regimes in various jurisdictions extend the survivor spouse's right to claim dependants' relief to married and unmarried spouses alike. (65) Where married and unmarried spouses are afforded parallel entitlements to support from an estate, cases involving unmarried partnerships may require courts to assess whether the relationship falls within the ambit of a spousal union. This analysis will engage courts in an assessment of the relationships marriage-like attributes and, in turn, a determination as to whether the applicant has standing to claim relief from the estate as a spouse.

Determining whether a relationship tracks marriage in a way that will allow an applicant to be recognized as a "spouse" can be an elusive exercise. Legislation usually directs courts to consider whether the couple has been in a marriage-like union or has cohabited in a "conjugal relationship" continuously for at least a set period. (66) These definitions provide nebulous contours around the parameters of the unmarried spousal relationship, and raise vexing questions regarding the essence of "conjugal" and "marriage-like" partnerships. Statutory provisions (67) or jurisprudence (68) that presents indicia of such unions might facilitate efforts to respond to such questions. Yet such authorities also might prompt juridical inquiries that scrutinize heavily a relationships intimate and sexual dimensions. At the same time, such inquiries risk overlooking elements that bear more direct pertinence in evaluating the social and economic interdependence of an adult partnership. (69)

In assessing whether a claimant for support bears the status of a spouse, courts will look for a period of continuous cohabitation in an effort to detect an intention to live as though married. But this being said, a shared residence alone will not by itself suffice. Courts will seek out evidence of the parties' subjective intentions to live like spouses under one roof. This typically entails an inquiry into the sexual, social, and economic practices of the applicant and testator. Where these dimensions of life are both shared and exclusive over a persistent period of time, an applicant's claim that he or she was the testator's spouse will benefit from greater odds of success. (70)

Applications for support premised on wills variation or dependants' relief therefore exhibit distinct expectations about the constitution of married life. Although juridical decisions in this domain focus on couples who never married, formalized marriage is at the core of analyses, serving as a benchmark against which other relationships are assessed to discern an applicants eligibility to claim support from a testators estate. In this way, wills and estates law centralizes the institution of marriage as a barometer for identifying relationships worthy of a post-mortem support obligation. The law of wills and estates further conveys a distinct image of what it means for individuals to conduct themselves as though they are married even though their relationship was never formalized as such. Dependants' relief and wills variation law construes marriage as hinging on living together in addition to intertwined social, economic, and sexual lives. A court must find clear evidence that these aspects of life are shared, even though the contributions of each spouse need not be mirrored or equal. Rather, the focus of the inquiry is on locating mutual support (71) and an "economic partnership". (72)

Drawing on conventional Western marriage norms, judicial commentary indicates that sharing as between spouses must be exclusive, and take on a binary form. A veritable spousal relationship requires the presence of no more than two adults whose economic, intimate, physical, and social existences are intertwined. Courts will be inclined to interpret the mingling of these facets of life with third parties as evidence that the parties did not see one another, nor intend to live, as "spouses". Third-party presence might be found in many marriage relationships. W ills and estates law may itself make room for this social fact, recognizing that two or more persons might qualify to inherit as "spouses" on intestacy. (73) Be this as it may, in the context of support claims on estates, the presence of more than one individual who approximates spousal status vis-a-vis the deceased is viewed as a deviation from what attends a "marriage-like" relationship. (74) Exclusivity is therefore decisive to spousal status in this domain. This remains the case even, ironically, where the applicant's relationship with the testator began while one of them was still married or in a conjugal relationship with a different individual. (75)

Juridical analyses of dependants' relief and wills variation cases further reflect appreciations of marriage and married life in cases where the applicant has established himself or herself as a spouse with standing to seek support from an estate. At this point in the analysis, spousal status is decided and the inquiry turns to assessing the applicants entitlement to support, or the merits of his or her claim. The applicant will succeed in advancing this claim if he or she can establish that his or her testamentary entitlement does not make adequate provision for his or her maintenance. Evaluations of such claims depend on both the testators legal and moral obligations toward the applicant. (76) Therefore where a testator lacks a legal duty or where this duty is satisfied by his or her will or a will substitute, a survivor spouse is not precluded from advancing a claim for dependants' relief or wills variation. It is enough to found a claim on the testator's moral responsibility to provide the applicant with adequate and proper support. Indeed, the Supreme Court of Canada has averred that testators have a "strong moral obligation" to ensure that, after they die, their dependent spouses benefit from the provision of just and sufficient support. (77)

Judicial investigations in this context illuminate the ways that law understands the spousal relationship and the factors that bolster a spouse's moral entitlement to support. Unions characterized by durability, even in the face of adversity or challenges within the relationship, can substantiate a moral claim. The same is true of partnerships that exhibit evidence of contribution or sacrifice, be it emotional or economic. For example, evidence that a spouse was "totally dedicated" to his or her partner and provided the latter with "loving and effective care", particularly at the end of life, will bear relevance in this analysis. (78) Comparably, a relationship marked by one spouse nourishing the growth of the other's estate over the course of the relationship--be this via financial or labour contributions--will solidify that spouse's subsequent claims for support from the estate. (79)

By contrast, these claims will be weakened where parties separated their economic lives or where there is minimal evidence that the applicant had a hand in building his or her spouse's estate. (80) Support claims on estates might also fail where a court finds that a testator satisfied his or her moral obligations during his or her lifetime, thereby exonerating the estate from any subsequent duty to support the applicant. (81) Finally, situations in which the parties had separated, or "harbour[ed] animosity" toward one another can dilute the strength of a spousal application for dependants' relief or wills variation. (82)

In the final analysis, the principles and rules that govern the area of dependants' relief and wills variation emit a message about marriage that differs from that conveyed by other areas of testamentary successions law. The law of dependants' relief and wills variation departs from a narrative centralizing the inherent value and importance of marriage to wade into the murkier and more controversial territory of assessing the qualities that cause relationships to approximate marriage. In so doing, courts are drawn to articulate norms as to what constitutes a spousal union, and what genre of spousal relationship and circumstances will substantiate support from an estate.

As discussed in this part, judicial analyses set out such normative benchmarks in two separate strands of inquiry embedded within the governance of dependants' relief and wills variation. First, legislation will allow married spouses and in many cases, unmarried cohabiting spouses to claim support from an estate. In discerning whether an unmarried partner counts as a "spouse" for the sake of discerning his or her standing as a support applicant, judges will consider the extent to which his or her relationship with the testator paralleled a marital union. In so doing, judicial reasoning conveys wills and estates laws expectations of the norms and behavioural patterns that attend marriage, while simultaneously reasserting marriage's place at the core of wills law.

Dependants' relief and wills variation claims also prompt courts to comment on the essence of marriage in a second context. Even where an applicant has standing to advance his or her claim, he or she must establish his or her entitlement by adducing evidence that the estate plan in question failed to make adequate provision for his or her maintenance. Responding to this argument will draw courts into an assessment of the claim's merits, which typically requires an investigation into the nature and quality of the spousal relationship.

Crucial to underscore, then, is the judicial discretion that exists in the realm of dependants' relief and wills variation to consider the content of the marriage relationship. Courts deciding other matters related to wills and estates are not afforded any such discretion. For example, in applying rules related to wills revocation, all that matters is the existence of a valid marriage. Where that formal requirement is met, the doctrines in question apply, generally without any ability for a judge to turn his or her mind to the harmony--or lack thereof--within the particular relationship. In dependants' relief and wills variation, however, the fact that a marriage or spousal relationship can be discerned is not by itself decisive. Rather, courts are invited to probe the behaviour and content of the relationship and in so doing, have issued commentary illuminating the understanding of marriage's constitution that prevails within the law of wills and estates. The exercise of this discretion further exhibits the wide berth of protection that this law accords to dependants, notably, survivor spouses. Through the mechanisms of dependants' relief or wills variation, courts will safeguard legitimate dependants' interests in priority and preference to discernable testamentary intentions.

Dependants' relief and wills variation regulatory frameworks thus draw sharp divisions between those who are married or in a marriage-like relationship, and those who cannot be so characterized. Juridical privilege is bestowed on the former group, while palpable disadvantage is discernable for those who fall outside the ambit of the marital norm. While some judicial analyses have directed the inclusion of un-formalized unions within wills and estates doctrines, this inclusion is predicated on such unions bearing strong resemblances to marriage. (83) These unions remain on the outer perimeter of relationships considered worthy of protection and benefit, neglecting and implicitly proscribing partnerships that fall outside of these set boundaries. The "unjust systematic discrimination" that results from reliance on marriage norms has crucial symbolic and practical consequences for those who are single, whose most proximate relationships do not mirror marriage, or who reject married or married-like life in its dualistic and exclusionary form. (84) At the symbolic level, law casts these relationships as aberrational and as inherently incapable of founding the depth of love, intimacy, and commitment thought to inhere to the Western marital ideal. This imagery can only fuel the social and legal exclusion of unorthodox partnerships. At a practical and more specific level, law's governance of such partnerships results in the denial of critical social and economic benefits. The point is underlined in this article with particular regard to protections pursuant to successions law for spouses that impose serious limits upon the principle of testamentary freedom.

It bears reasserting that these observations are not intended to substantiate the withdrawal of crucial protections afforded to spouses in the law of wills, as referred to in the immediate discussion, through dependants' relief and wills variation regimes. Rather, the objective is to recognize implicit discrimination within this area of law against individuals who are single or those whose intimate relationships fail to reflect conventional marital norms. (85) This recognition should in turn spur conversations about broadening wills and estates doctrines and rules so as to include protections for a wider range of individuals emotionally and intimately connected to a testator.

This discriminatory outfall of testamentary successions preoccupation with marriage may be brought to bear most significantly upon the lives of women. This paper's scope does not permit a full and nuanced consideration of the gender implications of marriage serving as the nucleus of wills and estates law. Nevertheless, the potential consequences for women of this juridical situation cannot be ignored. Several social factors align to heighten the risks for women whose intimate relationships with a testator are not formalized and therefore under- or unrecognized within the law of wills and estates. Women are more likely to outlive their intimate partners, they are responsible for the bulk of caregiving work for the aging and infirm, and most of this work is uncompensated. (86) The fact that relationships of care that do not match marriage, as it is regularly understood in Western legal cultures, results in clear economic disadvantage for caregivers in such relationships. Barring benefits conveyed by a valid will, they lack the ability to advance a claim against an estate. This adverse outcome compounds the social harm inflicted by the refusal to recognize and value the relationships concerned. As such, while feminists have viewed extension of special protection to married spouses within testamentary law as favourable to women, (87) the restriction of such protection to marriage contexts wields discernable disparate effects for women who do not qualify as married wives.


Norman Rockwell's worn and weary town clerk, depicted in a painting that graced the cover of the Saturday Evening Post nearly 60 years ago, continues to evoke knowing smiles among marriage skeptics. But any suggestion of this image representing the state's approach to marriage as one rooted in apathy is quickly corrected by an analysis of the juridical significance attached to formalized spousal relationships. While it is unsurprising to find marriage at the core of family law, this article demonstrates its centrality also within the law governing testamentary successions. As shown here, a central vocation of wills and estates law is the preservation of marriage relationships and the protection of survivor spouses' legitimate interests and needs. In the pursuit of these ends, law liberally overrides individual intentions expressed within wills, undercutting the abiding primacy of testamentary freedom.

Scrutiny of marriage's role and function within the law of wills and estates offers valuable insight into the way law understands marriage and the preeminent value it attaches to it, especially in connection with the exercise of estates distribution. These insights are most pronounced in the three contexts that this article contemplates: conditional bequests that may interfere with a beneficiary's marital freedom; the doctrine of revocation by marriage and by divorce; and spousal claims for support from estates.

Taken together, these contexts throw into relief the work that the law of wills and estates accomplishes in prioritizing marriage, particularly in its most conventional form. Centralizing marriage has had the effect of rationalizing the override of testamentary intention and individual will, the presumed core of successions law, while also exposing the law of testamentary successions as a site for deepening knowledge about juridical visions of marriage. The analysis developed in this article further highlights how this area of law, by privileging formalized spousal unions, operates to the profound disadvantage of those whose intimate lives fall outside the marital realm. Such individuals are deprived of benefits and protections extended to married spouses by testamentary successions law, and the adverse consequences of this reality are exceedingly difficult to prevent or reverse by testamentary planning. Consider the example of three aging siblings who are economically and socially interdependent. The relationship is not unheard of, (88) but it typically will not trigger effects pursuant to successions law, like the revocation of past wills or the ability to claim support from one another's estate. (89) The relationship also is not shielded from the adverse effects of testamentary revocation in the event that one sibling--who might have perhaps had a will that benefited his or her siblings--subsequently marries.

The pronounced focus on marriage within testamentary successions law thus raises important normative implications that extend beyond doctrinal concerns about the principle of testamentary freedom. An emphasis on marriage triggers exclusions of those who are single or whose relationships fail to reflect typical spousal patterns. This in turn spurs vulnerabilities, which seem especially stark for women, the elderly, and others who face acute social and economic risks. Far from benign, then, marriage's relevance and role within the law of wills and estates should prompt the critical and sensitive interpretation and revision of testamentary doctrines with a view to averting or mitigating their discriminatory effects.

(1) Elizabeth Brake, Minimizing Marriage: Marriage, Morality, and the Law (New York: Oxford University Press, 2012) (see especially ibid, ch 5): Suzanne A Kim, "Skeptical Marriage Equality" (2011) 34 Harv J L & Gender 37; Claudia Card, "Against Marriage and Motherhood" (1996) 11:3 Hypatia 1; Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (New York: Routledge, 1995) at 228-30; Paula Ettelbrick, "Since When is Marriage a Path to Liberation?" (1989) 6:9 Out/Look 14 reprinted in William B Rubenstein, ed, Lesbians, Gay Men, and the Law (New York: New Press, 1993) 401.

(2) Halpern v Canada (Attorney General) (2003), 65 OR (3d) 161, 225 DLR (4th) 529 (CA); Ligue catholique pour les droits de l'homme c Hendricks, [2004] RJQ 851,238 DLR (4th) 577 (CA); Civil Marriage Act, SC 2005, c 33.

(3) See e.g arts 392-96 CCQ; Family Law Act, RSO 1990, c F.3, s 30.

(4) On support obligations after marriage dissolution, see e.g. Divorce Act, RSC 1985, c 3 (2nd Supp), s 15.2. Alimentary duties that flow pursuant to the death of a spouse are discussed in Part III, below.

(5) Quebec (Attorney General) v A, 2013 SCC 5, [2013] 1 SCR 61. For comment, see Robert Leckey, "Developments in Family Law: The 2012-2013 Term" (2012) 59 Sup Ct L Rev (2d) 193.

(6) Art 423 CCQ.

(7) Hartshorne v Hartshorne, 2004 SCC 22, [2004] 1 SCR 550; Miglin v Miglin, 2003 SCC 24, [2003] 1 SCR 303; Rick v Brandsema, 2009 SCC 10, [2009] 1 SCR 295.

(8) Christian Jubault, Droit Civil: Les successions, les liberalites, 2d (Paris: Montchrestien, 2010) at 163.

(9) Christine Morin, L'emergence des limites a la liberte de tester en droit quebecois: etude socio-juridique de la production du droit (Cowansville: Yvon Blais, 2009) at 103.

(10) Ibid at 259-64.

(11) In re Tyhurst, Deceased, [1932] SCR 713 at 716,1932 CanLII 12.

(12) In re Estate of Brown (deceased), [1934] SCR 324 at 3 30, 1934 CanLII49. Beyond relying on testamentary intent as a beacon for the construal of wills, a broad authority is ascribed to testamentary freedom across the law of successions. See Sheena Grattan & Heather Conway, "Testamentary Conditions in Restraint of Religion in the Twenty-First Century: An Anglo-Canadian Perspective" (2005) 50 McGill LJ 511 at 513-14; Joseph Gold et al, "Freedom of Testation" (1938) 1:4 Mod L Rev 296; Joseph Laufer, "Flexible Restraints on Testamentary Freedom--A Report on Decedents' Family Maintenance Legislation" (1955) 69:2 Harv L Rev 277; Nicole M Reina, "Protecting Testamentary Freedom in the United States by Introducing into Law the Concept of the French Notaire" (2003) 46:3-4 NYL Sch L Rev 797 at 797.

(13) Melanie B Leslie, "The Myth of Testamentary Freedom" (1996) 38 Ariz L Rev 235.

(14) Ibid.

(15) Lionel Smith, "Intestate Succession in Quebec" in Kenneth GC Reid, Marius J de Waal & Reinhard Zimmermann, eds, Comparative Succession Law: Volume II: Intestate Succession (Oxford: Oxford University Press) [forthcoming in 2015]; Morin, supra note 9; Joseph Dainow, "Unrestricted Testation in Quebec" (1936) 10:3 Tul L Rev 401.

(16) Janet Finch & Jennifer Mason, Passing On: Kinship and Inheritance in England (New York: Routledge, 2000).

(17) Sue Westwood, "'My Friends Are My Family': An Argument about the Limitations of Contemporary Law's Recognition of Relationships in Later Life" (2013) 35:3 J Soc Welfare & Fam L 347 at 350-52.

(18) Brake, supra note 1 at 120.

(19) Ibid.

(20) Michael Cobb, Single: Arguments for the Uncoupled (New York: New York University Press, 2012) at 26.

(21) See Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa: Minister of Public Works and Government Services Canada, 2001); Brenda Cossman & Bruce Ryder, "What is Marriage-Like Like? The Irrelevance of Conjugality" (2001) 18:2 Can J Fam L 269.

(22) See e.g. Re Kent (1982), 139 DLR (3d) 318, [1982] 6 WWR 165 (BCSC); Bellinger v Nuytten Estate, 2003 BCSC 563, 50 ETR (2d) 1. The rationale driving the in terrorem doctrine has been critiqued as elusive. See Peter G Lawson, "The Rule Against 'In Terrorem' Conditions: What is it? Where did it come from? Do we really need it?" (2006) 25 ETPJ 71.

(23) AH Oosterhoff, "From the Law Reports: Re McBride" (1980) 5:2 E & TQ97 at 102, citing William Sheppard, Sheppard's Touchstone (London: Butterworths, 1826) vol 1 at 132 [Oosterhoff, "McBride"].

(24) (1980), 27 OR (2d) 513, 107 DLR (3d) 233 (H Ct J) [McBride].

(25) For a critique of the reasoning in McBride on various counts, see Oosterhoff, "McBride", supra note 23. The author is especially critical of Henry J's "resurrect[ion]" of the "archaic" distinction between conditions malum in se and malum prohibitum (ibid at 106).

(26) Art 757, para 1 CCQ.

(27) Art 757, para 2 CCQ.

(28) See e.g. Gosselin c Gosselin, 2009 QCCS 4396, 2009 CarswellQue 9990 (WL Can).

(29) See e.g. Savard c Curtin-Savard, 2012 QCCS 3523, JE 2012-1615: Madeleine Cantin Cumyn, "La liberte testamentaire et la Charte des droits et libertes de la personne" (1982) 84 R du N 223.

(30) See e.g. Re Goodwin (1969), 3 DLR (3d) 281,1969 CarswellAlta 114 (WLCan) (SC).

(31) RSQ c C-12, s 50. See e.g. Beland-Abraham c Abraham-Kriaa, [1988] RJQ 1831, 35 ETR 118 (CS); Despam cPetit [1988] RJQ2259,34ETR200 (CS) [Despam].

(32) See e.g. Central Guaranty Trust Company v Lefebvre-Gervais, [1992] RJQ 2264,47 ETR 257 (CS) [Lefebvre-Gervais cited to RJQ]; Nantel c Nantel [1984] CS 876, JE 84-584; Desparts, supra note 31.

(33) Lefebvre-Gervais, supra note 32 at 4.

(34) In re Tuck's Settlement Trusts (1977), [1978] Ch49, [1978] 1 AUER 1047 (CA) [Tuck],

(35) Tuck might be compared with the House of Lords' earlier decision in Clayton v Ramsden (1942), [1943] AC 320, [1943] 1 AUER 16 (HL) [Clayton cited to AC], which declared as void for uncertainty a testamentary clause that would trigger a daughter's forfeiture of her inheritance if she failed to marry someone "of Jewish parentage and of the Jewish faith" (ibid at 320). The contemporary impact of Clayton, however, appears minimal in view of more recent jurisprudence giving effect to testamentary conditions restraining beneficiaries' religion. See Grattan & Conway, supra note 12.

(36) In re Estate of Feinberg, 919 NE (2d) 888,235IU (2d) 256 (Sup Ct 2009) [cited to NE].

(37) Ibid at 903.

(38) (1996), 28 OR (3d) 496, 10 ETR (2d) 229 [Fox cited to OR].

(39) Ibid at 502.

(40) See e.g. Renaud v Lamothe (1902), 32 SCR 357, 1902 CarswellQue 17 (WL Can); Re Curran, [1939] 2 DLR803, [1939] OWN 191 (H Ct J); Re Kennedy Estate (1949), 60 Man R 1, [1950] 1 WWR 151 (KB).

(41) Grattan & Conway, supra note 12.

(42) See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

(43) Although a pre-Charter case, ReHurshman, Mindlin v Hurshman (1956), 6 DLR (2d) 615,1956 CarswellBC 235 (WL Can) (SC), is illustrative, contra Dynna v Grant (1980), 6 ETR 175, 3 Sask R 135 (CA), which illustrates judicial reverence to testamentary freedom in the face of an explicitly discriminatory testamentary document. The case involved a testatrix's disinheritance of her son because she disliked Norwegians and her son's spouse was of this ethnicity. The judicial analysis centred on testamentary capacity, and the court held that the son's disinheritance, while evidence of the testatrix's "eccentricity of character," did not amount to an insane delusion that rendered her incapable of making a valid will [ibid at 180). The judgment did not comment on whether the will compromised public policy given its references to ethnicity and its potential to encroach upon marriage. This might be explained by the fact that the son was excluded from the will rather than a beneficiary subject to a contentious condition. Nevertheless, the court's neglect of public policy issues in the Dynna v Grant judgment has been subject to criticism. See JC Shepherd, "Racially Motivated Wills: Dynna v. Grant" (1981) 5:3 E & TQ233.

(44) See Tattersall v Howell (1816), 2 Mer 26, 35 ER 850 (Ch); Maud v Maud (1860), 27 Beav 615, 54 ER 243 (Rolls Ct). See also Daniel Monk, "Sexuality and Succession Law: Beyond Formal Equality" (2011) 19 Fern Legal Stud 231 at 238.

(45) In re Jones, Deed; Midland Bank Executor and Trustee Co Ld v Jones, [1953] Ch 125, [1953] 1 All ER 357 (Ch).

(46) Monk, supra note 44 at 239.

(47) Recent legislation in Alberta and British Columbia has altered this general principle, such that marriage no longer revokes prior wills. See Wills and Succession Act, SA 2010, c W-12.2, s23; Wills, Estates and Succession Act, SBC 2009, c 13, s 55 [WESA], Curiously, however, the British Columbia statute retains the doctrine on revocation of a gift made to a spouse after divorce. Because this statute includes unmarried partners within its definition of a spouse, it actually expands this doctrine on gift revocation such that spousal bequests are revoked where individuals "cease to be spouses" even outside situations of divorce (ibid, s 56).

(48) Elbridge D Phelps, "Revocation of Wills by Marriage--An Outmoded Relic" (1954) 7:3 Okla L Rev 307.

(49) Succession Law Reform Act, RSO 1990, c S.26, s 16(a) [SLRA]; In re Coleman, Deed (1974), [1976] Ch 1, [1975] 2 WLR 213 (Ch).

(50) But see Ratzlaff Estate, 2002 SKCA 53, 212 DLR (4th) 258, where the Saskatchewan Court of Appeal allowed a will to stand post-marriage even though it did not include an express "formal declaration" of the testator's contemplation of marriage to a specific individual. The court upheld the will, since the testator had included a statement referring to his subsequent marriage and because, through extrinsic evidence, the court found that the testator had in his mind at the time his will was drafted his marriage to a specific, identifiable individual. See also Doug Surtees, "Ratzlaff and Wedding Plans: A New Threshold" (2003) 48 ETR (2d) 163.

(51) See e.g. SLRA, supra note 49, s 16(b). See Re Browne and Dobrotinic (1958), 13 DLR (2d) 562,1958 CarswellOnt 174 (WLCan) (H Ct J). Note, however, that most other Canadian provinces, besides Ontario, do not have parallel provisions.

(52) Albert H Oosterhoff, Oosterhoff on Wills and Successions, 7th ed (Toronto: Carswell, 2011) at 424-25 [Oosterhoff, Wills and Successions]; Chris Triggs, "Against Policy: Homicide and Succession to Property" (2005) 68 Sask L Rev 117.

(53) Arts 620-22 CCQ.

(54) Albert H Oosterhoff, "Consequences of a January/December Marriage: A Cautionary Tale" (1999) 18:3 ETPJ 261; Wendy L Griesdorf, "Crazy in Love: Caregiver Marriages in the Context of Estate Disputes" (2006) 25 ETPJ 315.

(55) Oosterhoff, Wills and Successions, supra note 52 at 324.

(56) See e.g. Banton v Banton (1998), 164 DLR (4th) 176,66 Ontario Trial Cases 161 (Ct J (Gen Div)).

(57) See e.g. SLRA, supra note 49, s 17(2)(a).

(58) (1986), 22 ETR 150, 50 RFL (2d) 99 (Ont H Ct J).

(59) See Corrigal v Buckley, 2001 NWTSC 77, 41 ETR (2d) 6.

(60) See e.g. The Wills Act, 1996, SS 1996,cW-14.1,s 17(1). In Manitoba, gifts to common law partners may be revoked when their relationship ends, provided that criteria specified in the legislation are satisfied. See The Wills Act, CCSM c W150, s 18(4).

(61) See supra note 5 and accompanying text.

(62) See e.g. SLRA, supra note 49, s 57.

(63) Tataryn v Tataryn Estate, [1994] 2 SCR 807 at 814,116 DLR (4th) 193 [Tataryn],

(64) See ibid; Camming v Cummings (2004), 69 OR (3d) 398, 235 DLR (4th) 474 (CA) [Cummings].

(65) This is the case in most Canadian jurisdictions. See e.g. WESA, supra note 47, s 2; SLRA, supra note 49, ss 57 (definition of "spouse"), 58. In Quebec, however, only partners who have married or entered a civil union are recognized as creditors of support from an estate. De facto union partners may not advance such a claim. See arts 585,684 CCQ. See also Jacques BeauInc, Droit des successions, 4th ed (Montreal: Wilson & Lafleur, 2010) at 513.

(66) See e.g. WES A, supra note 47, s 2.

(67) See e.g. Adult Interdependent Relationships Act, SA 2002, c A-4.5, ss 3-4, which provide criteria for determining whether a person is an "adult interdependent partner" or whether two persons form a "relationship of interdependence".

(68) See e.g. Molodowich v Penttinen (1980), 17 RFL (2d) 376,1980 CarswellOnt 274 (WL Can) (Dist Ct).

(69) Cossman & Ryder, supra note 21.

(70) Winik v Saskatchewan (Public Trustee) (1999), 28 ETR (2d) 240, 181 Sask R 111 (QB) [Winik],

(71) Re Davies and Davies (1979), 27 OR (2d) 98,105 DLR (3d) 537 (Surr Ct).

(72) Re Cooper (1980), 30 OR (2d) 113 at 119,115 DLR (3d) 451 (H Ct J Div Ct).

(73) See e.g. WESA, supra note 47, s 22. British Columbia's former Estate Administration Act, RSBC 1996,c 122,s 85.1 also acknowledged the possibility that an individual who dies intestate might have died leaving behind both a married spouse and a common law spouse. Chan Estate v Chan (1996), 16 ETR (2d) 262, 1996 CarswellOnt 3405 (WL Can) (Ct J (Gen Div)) is also noteworthy, reflecting judicial acknowledgement of the testators two "spouses" contending for a share of his estate.

(74) See e.g. Glenn v Kirkhy-MacLean Estate (2006), 23 ETR (3d) 272, [2006] Ontario Trial Cases 123 (Sup CtJ); ReFricker (Estateof), 2005 ABQB 972,390 AR 111.

(75) Winik, supra note 70.

(76) Tataryn, supra note 63; Cummings, supra note 64.

(77) Tataryn, supra note 63 at 822.

(78) Picketts v Hall (Estate), 2009 BCCA 329 at paras 33.63,95 BCLR (4th) 83.

(79) Re Henkel (Estate of), 2005 ABQB 482,2005 Carswell Alta 916 (WLCan); Re Boychuk (Estate), 2008 ABQB 38,439 AR 313.

(80) Dutertre v Oram Estate, 2007 SKQB 382,308 Sask R 160.

(81) Skworoda v Skworoda (Estate), 2008 ABQB 240,39ETR (3d) 81; Middel v Vanden Top Estate, 2010 ONSC 2951, 87 RFL (6th) 141.

(82) Ibid at para 42.

(83) See e.g. Ferguson v Armbrust, 2001 SKCA 122,208 DLR(4th) 250; Grigg v Berg, 2000 BCSC 36,71 CRR (2d) 117; Johnson v Sand, 2001 ABQB 253,287 AR 290; Woycenko (Estate of), 2002 ABQB 640,315 AR 291.

(84) Brake, supra note 1 at 112.

(85) Dependants' relief and wills variation regimes may include entitlements for relatives that are not spouses, such as children (see e.g. WESA, supra note 47, s 60). In Ontario, a sibling may also be included within the definition of a dependant. See SLRA, supra note 49, ss 57-58. Yet insofar as intimate, interdependent adult partnerships are concerned, claims are restricted to spouses who were either married or in a marriage-like relationship with the deceased.

(86) See generally Ezra Hasson, "'Where There's a Will There's a Woman': Exploring the Gendered Nature of Will-Making" (2013) 21:1 Fern Legal Stud 21; Daphna Hacker, "The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought" (2010) 7:2 J Empirical Legal Stud 322.

(87) Morin, supra note 9 at 104-07.

(88) Jill Elaine Hasday, "Siblings in Law" (2012) 65 Vand L Rev 897; Sonia Miner & Peter Uhlenberg, "Intergenerational Proximity and the Social Role of Sibling Neighbors after Midlife" (1997) 46:2 Family Relations 145; Dolores Cabic Borland, "The Sibling Relationship as a Housing Alternative to Institutionalization in Later Life" (1987) 8:3-4 Lifestyles 55. For a discussion of the legal implications of elder sibling interdependence from an inheritance standpoint, see Burden and Burden v United Kingdom, No 13378/05, [2006] ECHR 1064, aff'd [2008] ECHR 357, (2008) 47 EHRR 38.

(89) In some jurisdictions like Ontario, siblings may be recognized as dependants entitled to seek support from an estate or wills variation. See supra note 85.

ANGELA CAMPBELL ([dagger]), Associate Professor, Faculty of Law, Centre for Human Rights and Legal Pluralism, and Paul-Andre Crepeau Centre for Private and Comparative Law, McGill University. The author wishes to thank Myriam Larose for exceptional research assistance and Bethany Hastie, Dennis Klink, Myriam Larose, and Robert Leckey for generous and thoughtful comments on earlier drafts. The author is also grateful to La chambre des notaires du Quebec and the Social Sciences and Humanities Research Council of Canada for funding support.
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Title Annotation:marriage in wills and estates
Author:Campbell, Angela
Publication:University of British Columbia Law Review
Date:Jul 1, 2014
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