Forfeiture Clauses In Wills Variation actions are Not Valid

Forfeiture clauses in wills variation actions are not valid as a defence

Testators sometimes attempt to intimidate beneficiaries from contesting the will, by inserting punitive clauses called forfeiture clauses, purporting to take away a benefit given under the will, if the will is challenged.

These clauses may be enforceable in certain situations ( see article entitled Forfeiture Clauses in Wills on this website under articles), but they are NOT enforceable with respect to Wills variation actions.

Public policy dictates that spouses and children of a deceased should not be prevented from bringing a wills variation action.

This principle was confirmed in Kent v McKay 1982 BCJ 67  

The testator  provided in paragraph 9 of his will that:

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; PROVIDED that if such person whose benefits are so revoked would otherwise share in the residue of my Estate his or her benefits so revoked shall be divided equally among the remaining shares into which the residue of my Estate may be divided or as if such person had predeceased me and had left no issue surviving me.

The Court followed the Australian decision of In the Will of Gaynor, deceased 1960 VLR 64, where a similar clause in a will was found void on the basis that offended public policy.

 

17 It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act (supra) is to ensure adequate maintenance and support for specified individuals. 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 paragraph 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. I have concluded that the intent of clause 9 was to prevent any such application. It is not necessary for the purposes of this decision to conjure up scenarios wherein inequitable and distressing results are created for a widow, or children by being deprived of maintenance and support while an “undeserving” beneficiary takes under a will.

Clause 9 therefore is void as against public policy.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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