Kent v McKay

Kent v McKay
Citation	Kent v McKay, [1982] 6 WWR 165
Plaintiffs	Alexander David Kent and Jean Margaret Christy
Defendants	Robert McGregor McKay, Gordon Adair Green and Royal Trust Corporation of Canada, as Executors of the Last Will and Testament and codicil thereto of Max Alexander Kent, also known as Max A. Kent and Max Kent, Mrs. Martha Kent, and the issue of the petitioners, born and unborn, respondents
Year	1982
Court	British Columbia Supreme Court
Judge	Lander LJSC
Country	Canada
Province	British Columbia
Area of law	Conditional estates
Issue	Can a condition be void for reasons of public policy?

Facts

Max Kent left all of his real and personal property in trust for his wife and daughter. His son and daughter were to receive the income from separate trusts, however, they could only receive this income on the condition that they did not commence any litigation in connection with any provisions of the will. If they did this, they would lose their benefit. His intention in writing this clause was to limit his children's shares. However, the children had a statutory right to apply to have the terms of the will examined to ensure that they were fair.

Issue

1. Is an application under the Wills Variation Act considered "litigation"?
2. Is the condition void for being contrary to public policy?

Decision

Judgment for the plaintiffs; the condition is void under the in terrorem doctrine and for public policy reasons.

Reasons

Lander finds that the first question is answered in the affirmative – this type of action is definitely "litigation" as it is carrying on legal proceedings. However, the second question is not as straightforward. The children make three arguments for why the clause is contrary to public policy:

1. it deprives the court of jurisdiction;
2. it was made in terrorem; and
3. it denies them their right to apply for relief under the Wills Variation Act.

Lander states that provisions are generally only found to be invalid because they deprive the court of jurisdiction if they totally exclude the court from adjudicating any matter in relation to the will, for example by attempting to name an arbiter who will decide instead of the courts. This is not the case with this will, as the court can still settle other disputes relating to the will. He then states that there are three conditions that must be met in order for the in terrorem doctrine to be applicable:

1. the legacy in consideration must be real property, personal property, or a combination of the two;
2. the condition must either be a restraint on marriage or one that forbids the donee to dispute the will; and
3. the threat must be "idle" - it must be imposed solely to prevent the donee from undertaking that which the condition forbids.

The judge states that this clause satisfies these three requirements and therefore is void under this doctrine.

Lander goes on to say that it is also void for being contrary to public policy by denying the children the right to apply for relief. He says that it is a matter of public policy that support and maintenance be provided for individuals named in a will, and to circumvent these provisions is contrary to public policy.

Ratio

• In order for a provision of a will to be void under in terrorem:
  • the legacy in consideration must be real or personal property;
  • the condition must either be a restraint on marriage or one that forbids the donee to dispute the will; and
  • the threat must be "idle" - imposed solely to prevent the forbidden undertaking.
• It is considered public policy that benefactors under a will have the right to apply to the courts for matters of maintenance and disputes arising from terms in a will.
• A private testator cannot deny his benefactors statutory rights that belong to every person in the province.