AND TWO COWS TO MY WIFE … SO LONG AS SHE REMAINS MY WIDOW

THE CONTEMPORARY CASE AGAINST MARRIAGE CLAUSES IN CANADIAN WILLS

Abstract

This article presents the case against all forms of testamentary clauses that impose restraints on marriage clauses in Canadian wills. These include conditions requiring a beneficiary never to marry or to remarry; requiring a beneficiary to divorce their current spouse; forbidding a beneficiary from marrying a person of a certain race, ethnicity, religion, sex, or gender; or requiring the beneficiary to be married or marry in order to obtain or retain their gift. It argues that they should be found contrary to public policy and comprises three parts. First, it confronts and discounts the most common arguments for the preservation of the law as it stands. The article then explains the problems with how courts apply public policy to marriage clauses in Canada outside the province of Quebec. Not only is the current law likely incompatible with Ontario’s laws of evidence, but its rationale is also sexist, outdated, and irrelevant to today’s values and laws. The third part of this article argues what the contemporary public policy of Canada with respect to marriage clauses should be. It explains that if the doctrine is interpreted and applied in pari materia with a variety of legislative, constitutional, and international law sources, it becomes clear that all testamentary marriage clauses offend public policy.