Are odd clauses that people put in their wills enforceable?

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By Julie Cazzin with Ed Olkovich

Q: I have seen some really odd things in wills. My great-aunt left a loonie and a nasty comment to almost every person in her will, including her daughter and grandchildren. She left me, her great-grandson, $10,000, and her Furby collection from models collected in the late 1990s, which — don’t get me wrong — I am very grateful for. What are other odd clauses people put in their wills and what happens if they aren’t enforceable? — Grateful in B.C.

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FP Answers: Dear Grateful, you have a sense of humour and asking about odd will clauses makes me smile. Common misunderstandings usually involve items of personal property. These items can be emotionally priceless, but costly to handle if courts must rule on legal issues.

Gifts of personal property can be specifically identified in wills. These gifts are legally binding. They may also be handled by a memo or a written note outside of the will. These notes are not usually witnessed and, thus, may only be morally binding, not legally binding.

In one case, the willmaker left 13 pages of notes on how to distribute her personal items, including a crystal ashtray. All were to be returned to relatives in Europe. Who would pay for the shipping, handling and insuring of the ashtray? The undated memo was not part of the will and not legally binding; it was only morally persuasive. The cost of delivering these items would not be an estate expense.

Another common misunderstanding arises when relatives purchase gifts for relatives who later die. Donors of the gift often claim they are entitled to have it returned to them. That is incorrect. Once a gift is made, the donor has no right to cancel it or demand it be returned to them. If the property or gift is not valuable, this may not lead to conflict. However, the gifts are estate property.

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One interesting will clause left a garden decoration to the “Green” family. The will did not identify who was part of the Green family or who was to receive the gift. I later learned that the Green family were neighbours of the willmaker. The Greens had moved to the East Coast 25 years ago. How was the garden decoration to be delivered to an entire family?

Failed will gifts often fall into the residue of the estate if the named recipient of the gift predeceases the willmaker. That means they are often sold and the proceeds are distributed to the next of kin. Let’s say your will gifts your sports car to your cousin Jack, but only if he is unmarried. What if Jack gets married? What happens to your car? If this gift fails, it may fall into the residue of your estate and be divided among your next of kin.

On a more serious note, gifts to charities may not fail if the charity ceases to exist or changes its name. This is provided you intended to make a charitable gift. Gifts to hospitals in your hometown may not fail even if the hospital closes down. Courts can honour charitable intentions, so gifts to charities may not fail.

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How can you avoid any expenses and delays with charitable gifts? Check with the Canada Revenue Agency. It has a website that lists the names of all registered Canadian charities. Make sure the charity’s correct name is used in your will. You will receive a tax receipt to reduce your income taxes and know you helped support your community’s well-being.

Disclaimer: This is educational information only. It is not a substitute for legal advice. Edward Olkovich is an Ontario lawyer at MrWills.com. He is also certified by the Law Society of Ontario as a specialist in Estates and Trusts Law.

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