Bellinger v. Fayers, Nuytten 2003 BCSC 563 adopted the reasoning of Kent v McKay (1982) 139 DLR (3D) 318 that a forfeiture clause in a will, threatening to disentitle the claimant if a wills variation action is commenced, is void as against public policy.
In the Kent v Mckay decision, the testator left a clause in a will stating that if litigation is commenced to challenge the bequests in the will, then in that event the claimant would be disentitled to share in the estate.
The court held that such a clause in a wills variation claim is void against public policy for three reasons:
- the provision attempts to deprive the court of jurisdiction;
- the paragraph purports to grant the claimant’s their interest on the condition that they will not dispute the will and seeks to enforce that condition by threat. Such a condition in a will imposed “interrerom” is invalid it common-law;
- the clause denies the claimants the right to apply for relief under the wills variation act.
The court held that if the clause in the will had been inserted to deprive the claimants of the right to apply to the courts to establish their existing legal rights, in such a clause is contrary to public policy. The court followed previous authority such as Re Bronson (1958) OR 367.
Such a clause in a will is usually found to be invalid because it deprive the courts jurisdiction only were such provision purports to totally exclude the courts from of adjudicating any matter under the will.
In the Australian decision of Re Gaynor (1960) VLR 640 the deceased will contained a declaration similar to the Kent decision, and provided that if any beneficiary instituted any action to contest the will, such beneficiary would forfeit all of his or her interest.
The Australian courts reasoned that the dependent’s relief legislation which the daughter sought to invoke was legislation imposed as a matter of public concern, and because it is a matter of public concern that the dependent should not be left without adequate provision for the proper maintenance and support, the court held that it is a matter of public policy that support and maintenance be provided for those defined individuals 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 a clause in a will.
The court went on to say that 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.