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Peculiar testamentary wishes

At the age of 99, Huguette Clarke, heiress of a mining fortune, executed a Will where she left nothing for her family members and instead, left her $300 million fortune to a future foundation for the arts, her goddaughter, doctor, accountant, lawyer, nurse and to the hospital where she spent the last 20 years of her life. Huguette died in 2011 and her family members challenged the Will, charging that she was incapable and taken advantage of when she executed the Will. The matter settled out of court; the future foundation for the arts received more than the other interested parties but after hefty legal fees.

Napoleon Bonaparte apparently included in his Will before dying in 1821 a strange wish that when he dies, his scalp hair be shaved and divided between his friends and family members. Harry Houdini directed in his Will that a séance be held each anniversary of his death. A Toronto-based attorney, Charles Vance Miller, left a large sum of money for the woman in Toronto who would give birth to the most children within ten years of his death. Janis Joplin left thousands in her Will for her friends to throw a party after she dies.

In the English case, Bank v. Goodfellow (1870), Mr. Banks believed that he was pursued and molested by evil spirits. He suffered from delusions throughout his life. He left his estate to his niece and the Will was challenged on the basis that he did not have capacity. The court said that the Will was valid because Mr. Banks managed his own funds and financial affairs and the delusions could not have had any influence on Mr. Bank’s decisions in disposing of his property. In spite of Mr. Banks’s delusions, he had testamentary autonomy. The case is still the foundation of English common law related to testamentary capacity.

Huguette Clarke, Napoleon, Houdini, Charles Vance Miller, Janis Joplin and Mr. Banks did not have conventional wishes in their Wills and this is likely, in many of the cases, what prompted the initial scrutiny around their wishes. However, eccentricity of the wish or of the testator is not of itself grounds for a challenge to the Will.

What matters when a court considers whether wishes in a Will should be upheld are the following:

• Testamentary freedom. Did the testator have capacity? Was the testator free to exercise his or her own will?

• Public policy. Do the wishes in the Will violate fundamental principles of our legal and institutional customs?

If there is clear evidence that testamentary freedom was not compromised and the wishes are consistent with public policy, the fact that the choices of the testator are not financially unsound, that the division of assets is unfair or unequal, that the estate is left to individuals or entities not related to the testator by blood or that the individual contesting the Will does not agree with the wishes or the choices of beneficiaries are all factors that are unlikely to weigh into a court’s decision.

The point is that testamentary wishes can be peculiar, impractical and even outright stupid but they can withstand scrutiny if the testator plans properly.

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