Article Volume 50:3

Testamentary Conditions in Restraint of Religion in the Twenty-first Century: An Anglo-Canadian Perspective

Table of Contents

Testamentary Conditions in Restraint of
Religion in the Twenty-first Century:

An Anglo-Canadian Perspective

Sheena Grattan & Heather Conway*

interesting questions concerning

The Canadian Charter of Rights and Freedoms
and the United Kingdoms Human Rights Act 1998
generate
their
application in the private sphere. In this paper, the
authors explore how the norms embodied in these
instruments affect testamentary conditions in restraint
of religion, which create conflict between a will
makers testamentary freedom and the beneficiarys
freedom of religion. This tension is particularly
relevant in Northern Ireland, where there has been a
history of such conditions.

The authors review jurisprudence of English,
Irish, and Canadian courts to assess the treatment of
testamentary conditions in restraint of religion to date,
and to project trends for the future. The common law
has traditionally defended testamentary freedom, but
the adoption of human rights legislation to protect
equality and freedom of religion suggests the position
is shifting.

The longer history of Charter jurisprudence
provides clues about future interpretation of the Human
Rights Act. The adoption of the Charter has affected
ideas of public policy in Canada, and Canadian courts
have re-examined traditional positions. However, the
tenor of judgments from the other side of the Atlantic is
still unashamedly pro-testamentary freedom, and it
remains to be seen if courts will be open to change.

la

La Charte canadienne des droits et liberts et le
Human Rights Act 1998 du Royaume-Uni posent des
problmes intressants quant leur application dans le
domaine priv. Dans cet article, les auteures examinent
comment les normes contenues dans ces instruments
affectent les conditions testamentaires imposant des
contraintes religieuses, puisquelles crent un conflit
entre la libert testamentaire de celui qui rdige ses
dernires volonts et
libert de religion du
bnficiaire. Cette tension est particulirement palpable
en Irlande du Nord, o de telles conditions ont exist de
longue date.

Les auteures passent en revue la jurisprudence
des tribunaux anglais, irlandais et canadiens afin de
dterminer le traitement ce jour des conditions
testamentaires imposant des contraintes religieuses et
afin den tracer la probable volution future. La
common law a traditionnellement veill prserver la
libert testamentaire, mais ladoption de lois relatives
aux droits humains et protgeant lgalit et la libert
de religion suggre un changement de position.

La vcu jurisprudentiel de la Charte fournit des
indices quant linterprtation future du Human Rights
Act. Ladoption de la Charte a eu un impact sur la
conception de politique publique au Canada et les
tribunaux canadiens ont procd un nouvel examen
de leurs positions traditionnelles. Toutefois, la teneur
des jugements outre-Atlantique demeure nettement
favorable la libert testamentaire, et il est encore
incertain si les tribunaux seront ouverts au changement.

* School of Law, Queens University, Belfast. The authors would like to thank Professor Philip
Girard, School of Law, Dalhousie University, and Professor Bruce Ziff, Faculty of Law, University of
Alberta, for their comments on an earlier draft of this paper.

Sheena Grattan and Heather Conway 2005
To be cited as: (2005) 50 McGill L.J. 511
Mode de rfrence : (2005) 50 R.D. McGill 511

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Introduction

I. Testamentary Conditions in Restraint of Religion:

The Current Legal Landscape in England and
Northern Ireland
A. Repugnancy
B. Public Policy
C. Uncertainty

II. Canadian Perspectives on Testamentary Conditions

in Restraint of Religion: A Pre-Charter Overview
A. Repugnancy and Uncertainty
B. Public Policy

III. Conditions in Restraint of Religion and the Influence

of the Charter

IV. Is Change Imminent in England and Northern Ireland?

A. Domestic Law and the Incorporation of the ECHR
B. Application of the ECHR to Testamentary Conditions

in Restraint of Religion

C. Religious Overtures and the Northern Ireland Dimension

V. Testamentary Freedom, Religious Restraints, and the

Changing Concept of Public Policy

Conclusion

513

516
517
518
522

525
525
526

529

537
537

539
543

548

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[Devise of lands and a house to X] but if [X] sells the
land and the house it must be sold to a Protestant and he
can only hold it so long as he remains a Protestant and
the Purchaser cannot buy it for anyone but a Protestant.
The house and land must not be given or willed or sold
to anyone but a Protestant for ever.

Will of a testator from Drumcree in
Portadown, County Armagh, Northern
Ireland, which was admitted to probate in
Belfast in 1967.1

The desire to dictate as long as possible to posterity, to
connect property with his own name, and to preserve it
in a sense as his own after his death, seems to be one of
the strongest and most universal passions in the breast of
Man. No one can have practised as a conveyancer
without bearing constant testimony to this. The soul of
the dying Testator beats against the barriers of the law,
which appear to him to confine within such narrow
limits the power which he thinks ought to be his, over
the property which he fondly believes to be his …

Sir Arthur Hobhouse, The Dead
Hand: Addresses on the Subject of
Endowments
of
Property.2

Settlements

and

Introduction

It was his review of the rule against perpetuities that prompted Sir Arthur
Hobhouse to make the latter observation in the late nineteenth century. Its application,
however, has a much wider currency than one of the most technical rules that the
common law has produced, since it articulates the timeless conflict which throbs at
the heart of the succession law of any society that recognizes private property. When
the freedom of testators3 to control and dispose of their property as they desire
conflicts with the freedom of the donee to do the same, whose freedom should the law
protect? And from this question stems another: what should be the position when the
donor seeks to control not just the property and the uses to which it could be put but
also the behaviour and lifestyle of the individual who receives it? Notwithstanding the
inroads that discretionary dependants relief and matrimonial property statutes have
made into the principle of free testamentary disposition, property owners in the

1 Drumcree Parish Church is at the centre of the ongoing right to walk dispute between members

of the Orange Order and the Nationalist residents of the Garvaghy Road.

2 (London: Chatto & Windus, 1880) at 16.
3 The word testator as used in general discussions throughout this article is gender-neutral,

indicating a male or a female will maker.

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English-speaking Canadian provinces can still exercise considerable power over the
distribution of their assets after death.4 Those in England and Ireland enjoy a similar
privilege.5 Yet it is clear that testators have often craved a more extensive control than
the mere power to designate the immediate successors to their bounty. Modern man
has generally abandoned the practice of his forebears of interring worldly goods
alongside their mortal remains and has looked instead to lawyers to ensure that the
dead hand hovers over his property for generations after his own demise.

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Much of the history of the English common law as exported to the dominions can
be analyzed in terms of how both the legislature and the judiciary have sought to
reconcile the potentially conflicting interests of the living and the dead. A
comprehensive assessment of such fundamental issues relating to the proper function
of the law of succession in contemporary society is clearly beyond the scope of a
single paper. Instead, we wish to focus on one species of legal mechanism whereby
testators have sought to impose their wishes upon future generations, namely, the so-
called testamentary condition in restraint of religion.

At this juncture, something by way of definition is appropriate. It appears that the
phrase conditions in restraint of religion was first coined by Lord Greene in Re
Samuel.6 The term is most typically associated with clauses in wills that require a
beneficiary to continue with, convert to, or become involved with a particular religion
on threat of forfeiture of the gift. However, conditions in partial restraint of marriage
and in partial restraint of alienation, and those that tend to influence the upbringing of
children may also have a religious aspect and are also discussed briefly in this
article. A testator may be motivated by a desire to propagate his own religion and thus
benefit its adherents or by an aversion to a particular faith, with the donee restricted
accordingly, though it has been suggested that conditions in restraint of religion
proceed more often from spite than from benevolence.7 As with any testamentary
condition, however, it is important never to lose sight of the fact that the restriction
in question is artificial rather than real. The inherent nature of the animal is that the
intended recipient is under no legal compulsion to, say, convert to or eschew a
particular religion. The donee always has a choice: either to accept the gift with the
conditions or to disclaim it and retain complete freedom as to the restriction.

4 See generally Cameron Harvey, The Law of Dependants Relief in Canada (Toronto: Carswell,

1999).

5 In England, there is also a system of discretionary family protection. The current legislation is the
Inheritance (Provision for Family and Dependants) Act 1975 (U.K.), 1975, c. 63 [Inheritance Act
1975]. Virtually identical legislation is in force in Northern Ireland: Inheritance (Provision for Family
and Dependants) (Northern Ireland) Order 1979, S.I. 1979/924 (N.I. 8). In the Republic of Ireland,
spouses benefit from an elective share, but children of the testator may apply under the discretionary
system found in the Succession Act 1965, No. 27/1965, s. 117.

6 (1941), [1942] 1 Ch. 1 at 30 (C.A.).
7 Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary

Restraints on Conjugal and Religious Choices [1999] U. Ill. L. Rev. 1273 at 1276.

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This article looks at testamentary conditions in restraint of religion from an
Anglo-Canadian perspective. In terms of focusing on religious conditions, their
interest to two property lawyers from Northern Ireland should not be unexpected.
Moreover, a separate research project involving one of the authors has confirmed that
these conditions have frequently appeared in wills drafted in the jurisdiction,
especially in rural areas.8 The subject matter was also influenced by the incorporation
of the European Convention on Human Rights,9 with its familiar guarantees of
freedom of conscience and religion, and prohibition of discrimination, into United
Kingdom domestic law in October 2000. Renewed speculation as to the effect of the
ECHR on property law led the authors to consider the potential impact on religious
restrictions in wills, and in particular whether the inherently discriminatory nature of
these restrictions might fall foul of the rights enshrined in the former instrument. In
trying to address this issue, Canada was chosen as an obvious comparator because of
the Canadian Charter of Rights and Freedoms,10 which contains similar guarantees of
equality and religious freedom yet has a more developed jurisprudence, given that it
was adopted in 1982. The focus here is on whether the rights enshrined in the Charter
have shaped traditional concepts of public policy in the context of testamentary
conditions in restraint of religion, and how this might inform a similar debate in
England and Northern Ireland. Although the title of this paper refers to an Anglo-
Canadian approach, the Northern Ireland testator, who provided its original
inspiration, continues to feature strongly throughout in the context of the various anti-
discrimination statutes that are in force there. We start by briefly outlining the current
jurisprudence on testamentary conditions in restraint of religion in both England and
Northern Ireland.11 To date, the approach of the courts has differed little between the
two jurisdictions, and they are generally discussed together.12 We then chart the
development of the law in Canada both before and after the Charter, before

8 Norma Dawson, Sheena Grattan & Laura Lundy, Dying to Give (Belfast: Her Majestys
Stationary Office, 2003). The extract that introduced this paper came to light in the course of this
research.

9 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950,

213 U.N.T.S. 221 at 223, Eur. T.S. 5 [ECHR].

10 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule

B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

11 The reader may not be aware that Northern Ireland is an entirely separate legal jurisdiction. Many
Commonwealth materials inaccurately refer to the United Kingdom as a sole legal jurisdiction. Some
legislation does apply throughout the United Kingdomfor example, tax law and the Human Rights
Act 1998 (U.K.), 1998, c. 42 [HRA], which forms part of the central discussion in this paper.

12 In theory, the courts in Northern Ireland (the basic structure in terms of hierarchy being the
Northern Ireland High Court, Northern Ireland Court of Appeal, and the House of Lords in London)
are not bound by decisions of the English courts and even a House of Lords decision is strictly
binding only if it originated in Northern Ireland. See Brice Dickson, The Legal System of Northern
Ireland, 4th ed. (Belfast: SLS, 2001) at 87-89. In practice, however, all decisions of the English
appellate courts are treated as effectively binding while decisions of the English High Court are
regarded as being of the strongest persuasive authority.

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concluding with an assessment of the impact that the ECHR and other statutory
developments are likely to have in England and Northern Ireland.

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I. Testamentary Conditions in Restraint of Religion: The Current

Legal Landscape in England and Northern Ireland
Testamentary freedom has been described as the corner-stone of the common

law.13 It has also been described as the greatest latitude ever given … to the volition
or caprice of the individual.14 One only has to look to the law reports for
confirmation of the veracity of this last observation. Throughout the Commonwealth
they abound with illustrations of malevolent and spiteful testators and judicial dicta
that proclaim:

[N]o man is bound to make a will in such a manner as to deserve approbation
from the prudent, the wise, or the good. A testator is permitted to be capricious
and improvident …15

Moreover, to bribe ones nearest and dearest with the family patrimony is also
within the prerogative accorded to testators, for the common law has raised no
objection per se to the concept of the testamentary condition, recognizing both the
condition precedent and the condition subsequent. Similarly, it has been no bar to
such conditions that they are unreasonable, foolish, or absurd, or that their motivation
is unadulterated vanity, malice, or spite. However, the principle of freedom of
testation has never been so sacrosanct to the English common law that it has been
totally without limit:

[A] testator may impose any condition that his whim and caprice may dictate,
however unreasonable, unless it be contrary to the law or public policy …16

A condition is contrary to law if it is repugnant to the estate granted, insufficiently
certain, or impossible to perform.17 All three have in the past had an impact on
conditions in restraint of religion. However, it is that nebulous concept contrary to
public policyin the succession law context, an umbrella term for those social

13 Philip Hoser, Family Provision for Non-spouse Dependants (1984) 14 Fam. Law 171 at 171.
14 Sir Henry Sumner Maine, VillageCommunities in the East and West, rev. ed. (London: John

Murray, 1890) at 42.

15 Bird v. Luckie (1850), 8 Hare. 301 at 306 (Ch.), Knight Bruce V.C.
16 Conditions on Testamentary Gifts as a Device of Control, Note (1936) 36 Colum. L. Rev. 439

at 439.

17 In addition, it must not breach the rule against perpetuities. In England, at common law, if a right
of re-entry (the right to repossess property that arises on the breach of a condition subsequent) could
arise at the end of the perpetuity period it was ineffective, so the gift was absolute. However, the wait
and see principle has been applied to such gifts (Perpetuities and Accumulations Act 1964 (U.K.),
1964, c. 55, s. 12). In Walsh v. Wightman, [1927] N.I. 1 (C.A.), the Northern Ireland Court of Appeal
held that the rule against perpetuities did not apply to a right of re-entry for condition broken, but the
position has now been amended by statute and is the same as in England (Perpetuities Act (Northern
Ireland) 1966 (U.K.), 1966, c. 2, s. 13).

S. GRATTAN & H. CONWAY TESTAMENTARY CONDITIONS

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ideals that the law considers paramount to testamentary freedomthat is of particular
interest to us.

517

A. Repugnancy

[B]ut if circumstances require [X] to sell the lands, they
must be sold to a person professing the Protestant
faith …

Will of a farmer from County
Fermanagh, Northern Ireland, admitted
to probate in 1967.

The principle that land should be freely alienable has been enshrined in Anglo-
Irish law since Quia Emptores18 in 1290, with the consequence that a total restraint on
alienation is void as being repugnant to the estate given. However, the validity of the
partial restraint is equally well-established,19 and [w]here the condition is not a total
restriction, it is a question for the court as a matter of public policy whether it is so
restrictive as to be void.20 That as a matter of public policy the nineteenth-century
courts favoured a will makers freedom of testation over a legatees freedom of
alienation is exemplified by the refusal of Sir George Jessel, Master of the Rolls, in Re
Macleay21 to void a clause that precluded the beneficiary from selling the land that he
had been devised out of the family. Not only did this case demonstrate how the
concept of freedom of testation was revered by the common law during an era that has
become known as the golden age of individualism, but it provided the basis for the
subsequent contention that a restraint forbidding alienation outside a particular racial
or religious group, obviously much larger in number than a family, must also
necessarily be valid. It is also rather ironic, in that Sir George Jessel was the first Jew
to hold judicial office in England.22

Neither the subsequent retreat from unfettered freedom of testation during the
twentieth century, nor Justice Harmans narrowing of the ratio of Macleay in Re
Brown,23 which shifted the balance in favour of the legatees freedom of alienation,
has as yet persuaded an English court that testamentary conditions in restraint of
alienation to a particular religious (or racial) group are voideither for being
repugnant to the estate given, or for being contrary to public policy for promoting or

18 (U.K.), 18 Edw. I.
19 Were the doctrine of repugnancy to be applied in its purest form, it would preclude any restriction
on alienation. See generally Glanville L. Williams, The Doctrine of Repugnancy (1943) 59 Law Q.
Rev. 343.

20 J.C.W. Wylie, Irish Land Law, 3d ed. (Dublin: Butterworths, 1997) at 210.
21 (1875), L.R. 20 Eq. 186 (M.R.) [Macleay].
22 A point noted by D.A.L. Smout in An Inquiry into the Law on Racial and Religious Restraints

on Alienation (1952) 30 Can. Bar Rev. 863 at 866.

23 (1953), [1954] 1 Ch. 39.

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harnessing intolerance.24 However, a first-instance decision from the Republic of
Ireland provides some evidence that courts in that jurisdiction may be prepared to take
a less sympathetic approach to such conditions, especially where their motivation is
the perpetuation of old resentments.25 In Re the Estate of Dunne,26 a will maker had
devised his property to one Samuel Le Blanc and his wife subject only to the
condition that my dwelling house and lands or any part thereof shall not be sold or
otherwise conveyed or transferred by them … their successors or assigns, to any
member of the Meredith families of OMoores Forest, Mountmellick. The Land
Registry refused to register the restraint on alienation in the absence of a court order.
When such an order was sought, Justice OHanlon ordered that the devise be
registered without the condition. His first ground was that the word family was
uncertain in this particular context. In addition, however, the learned judge had doubts
about

the consistency with public policy of incorporating conditions in the grant or
devise of freehold property, the obvious purpose of which is to perpetuate old
resentments and antagonisms and bind the grantee or devisee to bear them in
mind and give effect to them when contemplating any further disposition of the
property.27

B. Public Policy

[Farm to daughter] on condition that she does not
marry a member of the Roman Catholic Church or one
who has previously been a member of the Roman
Catholic Church.

Will of a farmer from County
Armagh, Northern Ireland, who died in
1997.

In general, the common law has sought to override testamentary freedom on the
ground of public policy in a relatively limited range of circumstances, one of which
could broadly be described as protecting or preserving the family. Under this rubric,
the judiciary has been prepared to override both total restraints on marriage and
certain conditions that tend to interfere with a parents duty to bring up and educate

24 Compare the position with contracts for the sale of land in Northern Ireland in the wake of the
Fair Employment and Treatment (Northern Ireland) Order 1998, S.I. 1998/3162 (N.I. 21) art. 29
[1998 Order]. See text accompanying note 181.

25 While the Republic of Ireland has existed as an independent state since 1921, a significant part of
its common law heritage is derived from pre-partition English authority, and many of the same issues
have arisen in this jurisdiction as regards the validity of testamentary conditions in restraint of
religion. A number of Irish cases are referred to throughout the course of this article for comparative
purposes.

26 [1988] I.R. 155 at 156 (Ir. H. Ct.).
27 Ibid. at 157.

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his or her children. However, the judiciarys revulsion for a total restraint of
marriage28 has not extended to partial restraints which have been repeatedly held valid
(including those framed in terms of a religious denomination),29 unless they attach to
personality, in which case they will be invalid as being in terrorem in the absence of a
gift over.30 Some conditions by which a will maker has required someone elses child
to belong to a particular denomination have been voided as tending to interfere with
the parents duty,31 but neither the English nor Northern Irish judiciary have taken this
approach consistently, and on other occasions they have construed the offending
clause as being postponed until either a reasonable time after the beneficiary reaches
majority32 or the age of discretion.33 The result is that the law is uncertain, but in light
of dicta in Blathwayt,34 the most recent pronouncement from the House of Lords,
there is a strong possibility that lower courts would limit the parental interference
principle to nonreligious clauses.

However, leaving aside the peculiar difficulty relating to infants, which, in any
event, raises rather different policy considerations, the English and Northern Irish
judiciary have consistently refused to void a condition in restraint of religion as being
per se contrary to public policy, in that, for example, it interferes with the donees
freedom of conscience or discriminates against members of the will makers family on
grounds of religion. Indeed, there exists a plethora of older case law in which such
public policy objections were apparently never raised. In Hodgson v. Halford,35 one of
the first reported decisions in which such objections were raised, Vice-Chancellor
Hall was emphatic that he could not

28 See Long v. Dennis (1767), 4 Burr. 2052, 98 E.R. 69 (K.B.), where Lord Mansfield wrote:
Conditions in restraint of marriage are odious; and are therefore held to the utmost rigour and
strictness. They are contrary to sound policy (ibid. at 2055).

29 See the comments of Lord Naish in Re Knox (1889), 23 L.R. Ir. 542 (Ch.) [Knox]: Conditions …
requiring a legatee … to marry persons of a particular religious denomination, and forfeiting their
interest if they did not, have been repeatedly held valid, and it is now too late to question their
validity (ibid. at 554).

30 See generally Olin Browder, Conditions and Limitations in Restraint of Marriage (1941) 39

Mich. L. Rev. 1288.

31 See Re Borwick, [1933] 1 Ch. 657, [1933] All E.R. 737 [Borwick cited to Ch.]. The condition
subsequent in this case, which provided for the forfeiture of the beneficiarys interest if he should
before the age of twenty-one be or become a Roman Catholic or not be openly or avowedly
Protestant (ibid. at 659) was also voided on the grounds that it was uncertain.

32 See the views expressed by Lords Simon and Wilberforce in Blathwayt v. Baron Cawley (1975),
[1976] A.C. 397, [1975] 3 All E.R. 625, [1975] 3 W.L.R. 684 (H.L.) [Blathwayt cited to A.C.] and by
Justice Black of the Northern Ireland High Court in McCausland v. Young, [1948] N.I. 72 (Ch.)
[McCausland I]. For criticisms of this approach, see K. Mackie, Testamentary Conditions (1998)
20 U.Q.L.J. 38 at 45.

33 See Re May, [1917] 2 Ch. 126.
34 Supra note 32: To say that any condition which in any way might affect or influence the way in
which a child is brought up, or in which parental duties are exercised, [is void] seems to me to state
far too wide a rule. … (ibid., Lord Wilberforce at 426).

35 [1879] 11 Ch. D. 959.

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in the absence of authority say that a parent or appointor … disposing by will
either of his own property or of any property over which he has a power of
appointment, is not perfectly justified in making a provision in favour of such
of his children as shall not embrace a particular faithChristian, Roman
Catholic, Mahommedan, or any other.36

Over half a century later, when the will of one Barnett Samuel came before the
highest tribunal in the country in Clayton v. Ramsden,37 members of the House of
Lords made no attempt to hide their contempt for will makers who exercised their
power to control from their grave the choice in marriage of their beneficiaries.38
Barnett Samuel, observed Lord Romer, was

one of those testators, of whom I venture to think there have been far too many,
who, by means of a forfeiture clause, have sought to compel a person to whom
benefits are given by the will to act or refrain from acting in matters concerned
with religion, not in accordance with the dictates of his own conscience, but in
accordance with the religious convictions of the testator himself.39

Yet notwithstanding this obvious distaste for the type of clause they were asked to
adjudicate upon, neither Lord Romer nor any of his fellow Law Lords were prepared
to invoke public policy as a ground for voiding it. That a testator may do this should
he desire is beyond question … was how his Lordship concluded the above dictum,
which had, until then, hinted at a more radical approachalthough, in fact, the
discontent did manifest itself in their Lordships establishing an alternative channel
through which to render the offending restriction void.40

It was not surprising that just six years later the Northern Ireland Court of Appeal

refused to depart from the reasoning of the House of Lords to pioneer a more radical
approach to the application of public policy when it had to determine the validity of
the forfeiture clause become a Roman Catholic or profess that he or she is of the
Roman Catholic religion.41 By 1976, however, when the House of Lords was asked
to pronounce on the validity of a similar condition, be or become a Roman Catholic
in Blathwayt,42 there seemed some possibility that political and legal developments of
the intervening quarter century might justify a difference in approach. The
developments in question were the European Convention on Human Rights,43 drafted
in 1950 in the aftermath of the Holocaust, originally to prevent the re-emergence of

36 Ibid. at 966-67.
37 (1942), [1943] A.C. 320, [1943] 1 All E.R. 16 (H.L.) [Clayton cited to A.C.]. The case involved a
partial restraint on marriage: a beneficiary was required to marry a person of Jewish parentage and of
the Jewish faith. See Part I.C, below.

38 Ibid. at 325, Atkin L.J.
39 Ibid. at 332.
40 Specifically, their Lordships found that the restriction was insufficiently certain: see text

accompanying note 56.

41 McCausland v. Young, [1949] N.I. 49 (C.A.) [McCausland II], although the court consisted of

two rather than three judges. In fact, the clause was contained in an inter vivos settlement.

42 Supra note 32.
43 Supra note 9.

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other dictatorial and oppressive governments but already the driving force for the new
culture of human rights that was pervading Western legal systems, and the Race
Relations Act 1976,44 which prohibited racial (but not religious) discrimination in the
public sphere. Counsel duly submitted that, although neither of these provisions was
directly applicable to the private document before the court, together they exemplified
prevailing attitudes, in light of which the clause in question should be voided as
discriminating against persons on religious grounds.

521

their Lordships unanimously held

However,
the condition valid. Lord
Wilberforce, who gave the leading judgment, summed up the relevance of these anti-
discrimination provisions as follows:

I do not doubt that conceptions of public policy should move with the times
and that widely accepted treaties and statutes may point the direction in which
such conceptions, as applied by the courts, ought to move. It may well be that
conditions such as this are, or at least are becoming, inconsistent with standards
now widely accepted. But acceptance of this does not persuade me that we are
justified … in introducing for the first time a rule of law which would go far
beyond the mere avoidance of discrimination on religious grounds. To do so
would bring about a substantial reduction of another freedom, firmly rooted in
our law, namely that of testamentary disposition. Discrimination is not the same
thing as choice: it operates over a larger and less personal area, and neither by
express provision nor by implication has private selection yet become a matter
of public policy.45

In a similar vein, Lord Cross of Chelsea remarked,

[I]t is true that it is widely thought nowadays that it is wrong for a government
to treat some of its citizens less favourably than others because of differences in
their religious beliefs; but it does not follow from that that it is against public
policy for an adherent of one religion to distinguish in disposing of his property
between adherents of his faith and those of another.46

Meanwhile, Lord Fraser was in no doubt as to what the paramount consideration
before him was: One must remember also the public policy that a testator should be
free, subject to the rights of his surviving spouse and children, to dispose of his
property as he pleases.47 Indeed, the entire tenor of their Lordships judgments was
extremely pro-testamentary freedommuch more so, in fact, than that of their
predecessors in Clayton.48 In particular, Lord Wilberforces obvious sympathy for
those from landed estates where family attitudes and traditions … may often
involve close association with one or another Church49 is in stark contrast to the

44 Race Relations Act 1976 (U.K.), 1976, c. 74. The Race Relations Act 1976 did not extend to

Northern Ireland.

45 Blathwayt, supra note 32 at 426.
46 Ibid. at 429.
47 Ibid. at 442.
48 Supra note 37.
49 Blathwayt, supra note 32 at 426.

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judicial exhortations made in Clayton about the abuse of paternal power, which
should have had Barnett Samuel blushing in his grave.

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One wonders if this concerted effort to re-establish testamentary freedom as a
central tenet of English property law was at least in part a reaction to the considerable
enlargement just the previous year of the family provision jurisdiction50a
development that had faced significant resistance in the House of Lords.51 Professors
Davina Cooper and Didi Herman have, however, offered a different analysis,52
namely, that the members of the House of Lords simply felt more distaste for an
attempt to influence someone to marry a fellow Jew than they did for an attempt by a
non-Catholic to ensure that his family was not tempted to embrace Roman
Catholicism after his death.

C. Uncertainty

While the obvious disfavour with which the judiciary has sometimes regarded
conditions in restraint of religion (or, at least, those of a particular nature) has not
persuaded it to resolve the conflict of interests openly in terms of public policy,
English courts have been prepared on occasion to invoke the narrower doctrinal
ground that such restraints are insufficiently precise to constitute legally acceptable
conditions:

That a testator may [insert a condition in restraint of religion] should he so
desire is beyond question, but in such a case it behoves him to define with the
greatest precision and in the clearest language the events in which the forfeiture
of the interest given to the beneficiary is to take place.53

This jurisprudence on conceptual certainty is arguably the best known of all litigation
relating to testamentary conditions, and it is not proposed to rake over the entire
debate again here.54 In brief, from the mid-1930s there were several cases in which
English courts voided religious conditions subsequent for being uncertain, a trend that
culminated with the decision of the House of Lords in Clayton, wherein four of the
five Law Lords held the expression of the Jewish faith void for uncertainty55

50 The Inheritance Act 1975, supra note 5, considerably extended the previous jurisdiction
contained in the Inheritance (Family Provision) Act, 1938 (U.K.), 1 & 2 Geo. VI., c. 45, by widening
the range of eligible applicants, by including anti-avoidance provisions, and by not limiting surviving
spouse applicants to a claim for maintenance.

51 See generally Richard D. Oughton, Tylers Family Provision, 3d ed. (London: Butterworths,

1997) c. 2.

52 D. Cooper & D. Herman, Jews and Other Uncertainties: Race, Faith and English Law (1999)

19 L.S. 339.

53 Clayton, supra note 37 at 332, Romer L.J.
54 See e.g. P. Butt, Testamentary Conditions in Restraint of Religion (1977) 8 Sydney L. Rev. 400

and N.D.M. Parry, Uncertainty and Conditional Gifts (1982) 126 The Solicitors Journal 518.

55 Clayton, supra note 37. The testator had given his daughter a legacy conditional upon her
marrying a person of Jewish parentage and of the Jewish faith and, in fact, the decision on the
Jewish faith is strictly obiter because their Lordships construed the clause as a single condition of

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because it was not such that a court could see from the beginning, precisely and
distinctly, upon the happening of what event it was that the preceding vested estate
was to determine.56 Whether a person was of the Jewish faith was a matter of
degree, and the testator had failed to give any indication as to what degree of faith
was required to prevent forfeiture.

523

The decision in Clayton has been the object of considerable academic criticism,57

primarily for failing properly to distinguish between certainty of expression and
certainty of application.58 In addition, the case emphasizes the subtle and …
artificial59 distinctions that characterize the law relating to the validity of conditions,
not least of which is the differing certainty tests for conditions subsequent and
conditions precedent,60 which can result in the absurdity of exactly the same clause
being void as the former but valid as the latter.61 In fact, however, the decision is of
relatively limited interest for present purposes for two reasons. The first is that both
Irish jurisdictions62 have expressly declined to apply its reasoning and declare either
of the two religious denominations that feature most frequently before them to be
conceptually uncertain. The Irish judiciary has repeatedly eschewed theological and
canon law definitions of what constitutes membership of a particular church in favour
of a more practical approach, and has refused to allow the possible evidential
difficulties of determining whether a particular individual is a member of a church to
be confused with the question as to whether the testator has used sufficient certainty
of expression:

I am confronted by a familiar expression, used by a Protestant farmer in his
will; I know what he meant and practically every citizen in every walk of life,
be he Catholic or Protestant, knows the meaning conveyed by the words
marry a Roman Catholic. … I do not concern myself with any theological
definition of membership of the Church; I have only to construe the plain
words used by a plain man in a sense plain to all of us; and I shall not make the
law justly ridiculous in the eyes of persons of common sense by declaring a
current expression, which the People knows and understands, to be
unintelligible in the High Court of Justice of Ireland. I think it would be hard to

forfeiture and not as two alternative conditions. Thus, the condition was void as a whole if one limb
of it were void, and all five Law Lords held that the phrase of Jewish parentage was void.

56 Clavering v. Ellison (1859), 7 H.L. Cas. 707 at 725, 11 E.R. 282, Cranworth L.J., cited in

Clayton, supra note 35 at 326.

57 See Butt, supra note 54, and Parry, supra note 54.
58 See especially Butt, ibid. at 411.
59 Parry, supra note 54 at 518.
60 The certainty test for a condition precedent is that a condition will not be void for uncertainty
unless the terms of the condition or qualification are such that it is impossible to give them any
meaning at all, or such that they involve repugnancies or inconsistencies in the possible tests which
they postulate … (Re Allen, [1953] Ch. 810 at 818, [1953] 2 All E.R. 898 (C.A.), Evershed M.R.
holding sufficiently certain the clause who shall be a member of the Church of England and an
adherent to the doctrine of that Church).

61 See e.g. the clauses in Re Abrahams Will Trusts, [1969] 1 Ch. 463, [1967] 2 All E.R. 1175.
62 See e.g. McCausland II, supra note 41 (in Northern Ireland) and Re McKenna, [1947] I.R. 277

(H.C.) [McKenna] (in the Republic of Ireland).

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find an expression that conveys more clearly exactly what it means throughout
this country. We say that a man is a Catholic or that he is not; if he is, then in
ordinary parlance whether he be a good Catholic or a bad Catholic or an
indifferent one, a Catholic he remains. On the other hand, if a litigant
undertakes to prove that a man who was a Catholic has actually given up the
faith, so that he is no longer in ordinary parlance a Catholic, he may or may not
succeed in Court, because his proofs of the fact that he set out to establish may
or may not be adequate, but his success or failure will not be due to any doubt
about the accepted meaning of the expression Roman Catholic.63

The second is that even in England, Clayton has been virtually distinguished out
of existence by the more recent decision of the House of Lords in Blathwayt. Their
Lordships refusal to accede to the public policy objections to a forfeiture clause that
precluded beneficiaries from being or becoming Roman Catholics has already been
discussed above. In addition, they refused to hold the condition be or become a
Roman Catholic void for uncertainty. Clayton was, said Lord Wilberforce, a
particular decision on a condition expressed in a particular way about one kind of
religious belief or profession. I do not think it right to apply it to Roman
Catholicism.64

In sum, therefore, the judiciary in England and in Northern Ireland have to date
refused to extend the relatively limited spheres in which public policy
considerations have operated in the context of testamentary conditions to void those
in restraint of religion. Their attitude to such conditions has varied from time to time,
but the most recent pronouncement from the highest judicial forum (admittedly, now a
quarter of a century ago) was unashamedly sympathetic to the interests of the late will
makers who inserted them. The artificial nature of the restriction and the element of
choice has been emphasizedbeneficiaries who are torn between pecuniary self-
interest and religious fealty cannot expect to have their cake and eat itand the point
has often been made that the truly spiritual (or those who are truly in love) will not
allow themselves to be bribed by testamentary conditions. Now only the smallest
remnant remains of the brief flirtation by the English courts with the indirect doctrinal
approach to circumventing undesirable conditions on the ground that they are
conceptually uncertain. Thus, so long as a will maker has taken a modicum of care

63 McKenna, ibid. at 285, Gavan Duffy P. However, in Burke and OReilly v. Burke and Quail,
[1951] I.R. 216 (H.C.), the same judge held that a provision for forfeiture if the beneficiary should
cease to practice the Roman Catholic faith was void for uncertainty. Similar views have been
expressed in England: see infra note 64.

64 Blathwayt, supra note 32 at 425. See also Cooper & Herman, supra note 52. It is only the Jewish
faith which the English judiciary have considered to be insufficiently certain. While other religious
restrictions have been voided for uncertainty, they have turned on the actual drafting used by the will
maker (at all times conform to the Church of England as in Re Tegg, [1936] 2 All E.R. 878 (Ch.),
and openly or avowedly Protestant as in Borwick, supra note 31) and not on the fact that the actual
religion or denomination was uncertain.

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with the precision of his drafting65 (and, possibly, endeavours to avoid controlling
someone elses children while they are still minors), he can go to the grave content
that there exists virtually nothing in the current jurisprudence that would inspire
confidence in those who might be minded to challenge a condition in restraint of
religion.66 A wiser, more perceptive will maker may, however, feel some unease that
so much of the case law on which he relies is of considerable antiquity and that even
Blathwayt is now rather dated. We will assess whether such caution is well-founded in
light of the Human Rights Act 199867 and, in relation to Northern Ireland, recently
enacted anti-discrimination legislation. First, however, we examine the impact that the
Canadian Charter of Rights and Freedoms has had on Canadian jurisprudence.

II. Canadian Perspectives on Testamentary Conditions

in

Restraint of Religion: A Pre-Charter Overview
Pre-Charter jurisprudence suggests that Canadian courts treated testamentary

conditions in restraint of religion in essentially the same way as their English
counterparts, with most impugned restrictions emerging unscathed from challenges to
their validity.

A. Repugnancy and Uncertainty

Despite a dearth of case law on the point, it appears that Canadian courts tolerated
testamentary restrictions on beneficiaries selling land to persons of a certain faith on
the basis that partial restraints on alienation do not fall foul of the doctrine of
repugnancy, since the class of potential purchasers outside the prohibited religious
group is sufficiently wide for the condition to be upheld.68 A perusal of the decisions
on conceptual uncertainty suggests that beneficiaries who invoked this particular
doctrinal ground also fared badly. In the wake of Clayton, a gift of the residue of an
estate to trustees to purchase land for the establishment of a Jewish colony or
colonies was declared uncertain in Re Schechter.69 However, judges consistently
determined references to other established religions or denominations to be
sufficiently certain, while demonstrating considerable latitude as regards the manner
and degree of adherence specified by the testator. Thus, directions that a beneficiary

65 Northern Ireland will makers have a tendency to refer to loyal Protestant, which would not be

conceptually certain.

66 But note the position under the Variation of Trusts Act, 1958 (U.K.), 6 & 7 Eliz. 2, c. 53 in Re

Remnants Settlement Trusts, [1970] Ch. 560, [1970] 2 All E.R. 554.

67 Supra note 11.
68 See the discussion in Smout, supra note 22 at 865-66. The author points to judicial endorsement
of Macleay, supra note 21, in cases such as OSullivan v. Phelan (1889), 17 O.R. 730 (H.C.J.), and Re
Martin and Dagneau (1906), 11 O.L.R. 349 (H.C.J.).

69 (1964), 43 D.L.R. (2d) 417 at 421-22, 46 W.W.R. 577 (B.C.C.A.), Lett C.J. However, the gift
ultimately failed on the basis that it did not qualify as a valid charitable trust and was void for
remoteness.

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is and proves himself to be of the Lutheran religion70 or is at that time a member of
a Roman Catholic Parish71 were not questioned, while instructions to embrace the
faith of the New Church72 or to rejoin the Catholic Church and practice the Catholic
faith73 were upheld as sufficiently certain.74 Distinctions between conditions
subsequent and precedent and the associated tests for validity and certainty generally
created few problems in this context. Thus, in Laurence v. McQuarrie, where the
deceaseds will provided for a forfeiture in the event of the beneficiary embracing
the doctrines of the church of Rome or acknowledging himself in connection with
that church, the restriction was interpreted as a condition subsequent and, as such,
had to be strictly construed.75 Although this particular beneficiary attended the Roman
Catholic Church, observed many of its rites and ceremonies, and maintained it to be
the true religion, the court held that he never acknowledged himself in connection
with this church, so the gift was not forfeited.76

While the use of repugnancy and uncertainty to challenge testamentary conditions
in restraint of religion may have been constructive in focusing on technical
requirements and thus circumventing the thorny issue of public policy, conflicts of
interest between testator and beneficiary were traditionally resolved in favour of the
former. Meanwhile, those who did adopt public policy arguments endured a similar
fate.

B. Public Policy

In the pre-Charter era, Canadian judges consistently refused to use the doctrine of

public policy to void conditions in restraint of religion. Although prepared to override

70 Re Patton, [1938] O.W.N. 52 (C.A.) [Patton].
71 Re Curran, [1939] O.W.N. 191 (H.C.J.) [Curran].
72 Re Doering, [1948] O.R. 923, [1949] 1 D.L.R. 267 (H.C.J.) in which Schroder J. held that a trust
for the education of male Canadian children embracing this faith and to be selected by the trustee in
consultation with a minister of the General Church of New Jerusalem was sufficiently certain.

73 Re Starr, [1946] O.R. 252, [1946] 2 D.L.R. 489 (C.A.).
74 See also Re Delahey (1950), [1951] O.W.N. 143, [1951] 1 D.L.R. 710 (H.C.J.), in which a
direction not to become members of the Roman Catholic Church was held to be sufficiently certain,
applying the decision in Re Evans, [1940] Ch. 629. For a rare example of a condition to adhere to the
Catholic faith being declared void for uncertainty, see Re Landry Estate (1940), 48 Man. R. 244,
[1941] 1 W.W.R. 280 (K.B.).

75 Laurence v. McQuarrie (1894), 26 N.S.R. 164 at 166 (S.C.).
76 Ibid. at 165. In contrast, Canadian courts occasionally avoided questions of validity when dealing
with conditions precedent on the basis that the beneficiary did not fulfil the relevant restriction. The
deceased in Re Mercer (1953), [1954] 1 D.L.R. 295 (Ont. H.C.J.), having provided for her infant
grandson on condition that he be trained and educated in the Protestant faith, Justice Treleaven held
that it was immaterial whether the condition was void for uncertainty because the gift could not take
effect unless the condition was fulfilled, and, although the grandson was being brought up in the
Roman Catholic faith, the condition might still be fulfilled since he was only six years old. See also
Re Going, [1951] O.R. 147, [1951] 2 D.L.R. 136 (C.A.).

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testamentary freedom in respect of total restraints on marriage,77 courts upheld partial
restraints based on religious affiliation as well as more general stipulations that a
beneficiary should embrace or eschew a particular religion after the will makers
death. For example, in Renaud v. Lamothe,78 the testator specified that the marriages
of his children should be celebrated according to the rites of the Roman Catholic
Church and that any grandchildren should be educated in accordance with its
teachings. A grandson who had not been brought up in this manner argued that the
condition should be struck out for reasons evocative of Charter values some eighty
years before it was enacted, namely, that the condition was in restraint of religious
liberty and violated the public policy of Canada, which allows the free exercise of
choice in matters of marriage and religion. The Supreme Court nevertheless upheld
the restriction.79

Less than thirty years later, a similar outcome was reached by the Ontario High
Court of Justice in Curran.80 A bequest in favour of the deceaseds grandchildren
required each one to have reached the age of twenty-five and to be a member of a
Roman Catholic Parish and if then married be married to one of the same Faith.81
Justice Godfrey upheld the marriage stipulation as a limited restraint.82 On the
question of whether the conditions were generally contrary to public policy, the
learned judge came out strongly in favour of testamentary freedom by suggesting that
the religious preferences of the deceased did not engender any public interest:

[T]hese conditions do not involve any question of public morality. The
testatrix, a devout Roman Catholic, was evidently opposed to mixed marriages.
She decided to distribute her estate so as to hold out an inducement to her
Protestant grandchildren to return to what she believed to be the true Church.
She also desired to prevent … any further wandering from her Faith by her

77 See e.g. Re Cutter (1916), 37 O.L.R. 42, 31 D.L.R. 382 (S.C.).
78 (1902), 32 S.C.R. 357.
79 See also Patton, supra note 70 where, concerning the upbringing of children per se, a condition
that the testators grandson should embrace a particular faith was upheld on the basis that the effective
date for compliance was postponed until after the child reached the age of majority, the grandson
having then converted from Catholicism to the Lutheran religion specified by his grandfather. Other
conditions interfering with parental duties in respect of raising and educating children have been set
aside: see e.g. Re Thorne (1922), 22 O.W.N. 28 (S.C.).

80 Supra note 71.
81 Ibid. at 192.
82 To similar effect is Re Kennedy Estate (1949), 60 Man. R. 1, [1950] 1 W.W.R. 151 (K.B.)
[Kennedy cited to Man. R.], in which the will maker had stipulated that the donee should be married
to a Protestant husband of good repute (ibid. at 3). The court noted that, if the condition was
sufficiently certain, it would not be void on any other ground. As for conditions restricting the
religious choices of the beneficiary per se, these were also upheld before the Charter. See e.g. Re
Forbes, [1928] 3 D.L.R. 22 (Sask. K.B.), in which the court held that a condition that the legatee
should be confirmed before the age of twenty-five as a member of the Church of England was not one
that should be disregarded as being against public policy.

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grandchildren marrying Protestants. That is not a matter in which the public has
the slightest concern.83

The only pre-Charter instance of a restraint of this nature being struck out on the
basis of public policy is the decision in Re Hurshman.84 His daughter having married
a man of Jewish faith, the testator made a will one month later stipulating that she
could not inherit until she had ceased to be the wife of a Jew.85 Justice McInnes held
that, since the condition was intended to encourage marital breakdown, it was
contrary to public policy and thus void. Having endorsed the comments of Lord Atkin
in Clayton pouring scorn on the power of testators to control the choices of
beneficiaries from beyond the grave,86 Justice McInnes reluctantly conceded that
racial (and religious) restraints in wills were generally acceptable in Canada:

[A]ny propensity toward racial discrimination has no place in this country and
while it may be open to a testator to lay down the conditions upon which his
children may or may not share in his bounty, yet insofar as those conditions
involve racial discrimination, his language must be precise and explicit and
clearly within the law if he expects the Courts to assist him in the fulfilment of
his aims.87

The decisions in Curran and Hurshman highlight two issues that feature strongly
in the Canadian debate on testamentary conditions in restraint of religion and public
policy. The first concerns the nature of the condition itself. Encouraging ones
nearest and dearest to subscribe to a particular religion might be deemed acceptable
where the underlying motive is to promote a certain faith, as in Curran. In contrast,
courts may look less favourably on situations where the discrimination goes beyond
an attempt to impose a particular form of ideology on another person and the
condition is premised on religious (or racial) intolerance, as in Hurshman. The second
and perhaps more compelling issue is the distinction between the public and private
spheres. According to Curran, the fact that a will maker attempts to control the
religious choices of a beneficiary is of no societal interest. It is between the individual
and the objects of his or her bounty (thus negating the public policy debate), and
within this privileged domain, the principle of testamentary freedom is paramount.
However, judicial attitudes in both these cases contrast sharply with more recent
Canadian jurisprudence, and in particular the extent to which courts post-Charter may
be willing to encroach on private testamentary dispositions under the guise of public
policy.

83 Curran, supra note 71 at 193-94.
84 (1956), 6 D.L.R. (2d) 615 (B.C.S.C.) [Hurshman].
85 Ibid. at 616.
86 See text accompanying note 38.
87 Hurshman, supra note 84 at 619. Despite focusing on racial discrimination, the outcome would
presumably have been the same if the condition had been interpreted as a religious prohibition, since
the offensive element was the requirement to abandon the spouse.

S. GRATTAN & H. CONWAY TESTAMENTARY CONDITIONS

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III. Conditions in Restraint of Religion and the Influence of the

529

Charter

The problem of determining the extent to which constitutional norms should be
binding upon the private sphere is not novel and has arisen in every jurisdiction that
has sought to adopt a charter of fundamental rights, with arguments ranging from
exclusively vertical effect through indirect to direct horizontal effect.88 Amid
the anticipation that surrounded the enactment of the Charter of Rights and Freedoms
in April 1982,89 one question loomed large: would an instrument guaranteeing the
rights of the people against the state bind individuals in private law disputes?90 Five
years later, this question was answered authoritatively by the Supreme Court of
Canada in Dolphin Delivery,91 in which the Court held that, although one private
litigant does not owe a constitutional duty to the other, judges must nevertheless
develop the common law in a manner which is consistent with Charter values.92 Such
values in turn feed into contemporary notions of public policy and introduce new
social ideals into this concept. One might have expected the enactment of the Charter
to prompt a change in judicial attitudes toward testamentary conditions in restraint of
religion in light of the guarantees of freedom of conscience and religion in section 2
and of equality in section 15. This is borne out by the relevant case law, with judges
seizing upon the equality provision in particular as a means of avoiding these
restrictions on public policy grounds.

One of the first cases to consider the validity of testamentary conditions in
restraint of religion in the aftermath of the Charter was Re Murley Estate,93 a decision

88 Comparative illustrations may be cited of jurisdictions at both ends of the spectrum, and of those
somewhere in between. See generally Justice Aharon Barak, Constitutional Human Rights and
Private Law (1996) 3 Rev. Const. Stud. 218. The terms horizontal and vertical effect have been
borrowed from European Union law, but tend to be used by most commentators. By vertical effect,
we mean that the instrument in question has no application whatsoever to a private dispute, especially
one which is governed exclusively by the common law. Direct horizontal effect means that the
instrument creates an independent cause of action between private parties for breach of their rights
under it, while indirect horizontal effect is a hybrid position.

89 Supra note 10.
90 See e.g. Dale Gibson, The Charter of Rights and the Private Sphere (1982) 12 Man. L.J. 213
and Brian Slattery, Charter of Rights and FreedomsDoes It Bind Private Persons? (1985) 63 Can.
Bar Rev. 148.

91 Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2

S.C.R. 573, 33 D.L.R. (4th) 174.

92 See also the decisions of the Supreme Court in Hill v. Church of Scientology of Toronto, [1995] 2
S.C.R. 1130, 126 D.L.R. (4th) 129 and Pepsi-Cola Beverages (West) Ltd. v. Retail, Wholesale and
Department Store Union, Local 558, [2002] 1 S.C.R. 156, 208 D.L.R. (4th) 385, 2002 SCC 8 [Pepsi-
Cola cited to S.C.R.]. For an effective critique, see B. Slattery, The Charters Relevance to Private
Litigation: Does Dolphin Deliver? (1987) 32 McGill L.J. 905 and Lorraine E. Weinrib & Ernest J.
Weinrib, Constitutional Values and Private Law in Canada in Daniel Friedmann & Daphne Barak-
Erez, eds., Human Rights in Private Law (Oxford: Hart Publishing, 2001) at 43.

93 (1995), 130 Nfld. & P.E.I.R. 271 (Nfld. S.C. (T.D.)) [Murley].

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of the Newfoundland Supreme Court. The testator was a retired United Church
clergyman who left his estate to his nieces son, subject to the following clause:

[Vol. 50

In order … to become heir to my Estate he must remain in one or the other main
stream Christian Churches … [The testator then listed Jehovahs Witnesses and
Mormons as proscribed religious denominations, and concluded] I make these
rules following Old Testament holy men who ordered that their sons or
relatives never become part of lesser religious organizations. I want him to be a
real Christian.94

While not specifically referring to the Charter in deciding the fate of the restriction,
the issue was one which Justice Riche said could be disposed of without lengthy
reasoning since he was satisfied that such a provision which restricts the religious
affiliation of any person is, in Canada, contrary to public policy.95 It is regrettable
that such an important decision did not merit further reasoning and that the judge did
not offer any explanation for such an apparent about-turn from the cases discussed in
the previous section of this article, in which the courts had refused to void religious
restraints in wills as being contrary to public policythese were not mentioned in the
judgment. Likewise, Justice Riche did not make even passing reference to a decision
of the Ontario Court of Appeal some five years earlier, which had addressed the issue
of religious restrictions, albeit in a slightly different factual context.

The issue in Canada Trust Co. v. Ontario Human Rights Commission96 was

whether the terms of a scholarship trust known as the Leonard Foundation Trust were
contrary to public policy. Established in 1923, the trust was intended to provide
educational funds for students who were needy, white, of British parentage or
nationality, and Protestant. Different benefits were available to male and female pupils
seeking scholarships, while recitals in the trust made repeated references to the
superiority of the white race and the importance of maintaining the Protestant
religion. The Ontario Court of Appeal invalidated the entire trust, then used cy pres to
resurrect it without the offending clauses on the basis of a general charitable intent to
advance education. In deciding that the trust violated public policy, all three judges
alluded to a delicate balancing process. Justice Robins (with whom Justice Osler
concurred) acknowledged that the freedom of an owner of property to dispose of his

94 Ibid. at 274.
95 Ibid. Justice Riche went on to say that even if the condition was not contrary to public policy, it
would nevertheless be declared void since the bequest could not take effect until the beneficiarys
death because it would not be known until that stage whether he had become associated with a
religious group not approved by the testator, and therefore the gift could never be perfected.

96 (1990), 74 O.R. (2d) 481, 69 D.L.R. (4th) 321 (C.A.) [Canada Trust cited to O.R.]. See also Jim
Philips, Anti-Discrimination, Freedom of Property Disposition, and the Public Policy of Charitable
Educational Trusts: A Comment on Re Canada Trust Company and Ontario Human Rights
Commission (1990) 9:3 Philanthropist 3. For an excellent account of the background to the case and
its impact on the law governing private discriminatory action in Canada, see Bruce Ziff, Unforeseen
Legacies: Reuben Wells Leonard and the Leonard Foundation Trust (Toronto: University of Toronto
Press, 2000).

S. GRATTAN & H. CONWAY TESTAMENTARY CONDITIONS

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or her property as he or she chooses is an important social interest97 but had to be
limited by public policy considerations in the present case. The judge continued:

531

To say that a trust premised on these notions of racism and religious

superiority contravenes contemporary public policy is to expatiate the obvious.
The concept that any one race or any one religion is intrinsically better than
any other is patently at variance with the democratic principles governing our
pluralistic society in which equality rights are constitutionally guaranteed and
in which the multicultural heritage of Canadians is to be preserved and
enhanced.98

In short, the terms of the Leonard Foundation Trust had to yield to contemporary
principles of public policy under which all races and religions are to be treated on a
footing of equality and accorded equal regard and equal respect.99 Delivering the
other judgment in the case, Justice Tarnopolsky was equally critical of the trust but
went a step further in declaring the eligibility requirements void. Having remarked
that public policy is gleaned from a variety of sources, with particular emphasis
placed on the equality provisions in section 15 of the Charter as well as the Ontario
Human Rights Code,100 he held that the trust was contrary to public policy in that it
discriminated on the grounds of race, religion, and sex (though he stressed that courts
might take a different view of discriminatory restrictions aimed at the amelioration of
inequality). However, the outcome would have been different if the trust had been a
private family trust instead of a public educational trust:

A finding that a charitable trust is void as against public policy would not
have the far-reaching effects on testamentary freedom which some have
anticipated. This decision does not affect private, family trusts … Only where
the trust is a public one devoted to charity will restrictions that are contrary to
the public policy of equality render it void.101

The decision in Canada Trust is not only significant in affirming the equality
provision of the Charter as infusing public policy. It suggests that the motive behind
the restriction is important, a theme revisited in the subsequent case of Re Ramsden
Estate,102 in which the court held that a scholarship fund for Protestant students at the
University of Prince Edward Island could stand, since it was not based on blatant
religious supremacy and racism as in the Leonard Foundation Trust.103 One of the

97 Canada Trust, ibid. at 495, citing Blathwayt, supra note 32.
98 Ibid. at 495.
99 Ibid. at 496.
100 Human Rights Code, R.S.O. 1990, c. H-19.
101 Canada Trust, supra note 96.
102 (1996), 145 Nfld. & P.E.I.R. 156, 139 D.L.R. (4th) 746 (Nfld. S.C. (T.D.)) [Ramsden cited to

Nfld. & P.E.I.R.].

103 Ibid. at 159. The deceased having bequeathed part of her estate to establish these scholarships,
the University was prevented by statute from holding funds devoted to denominational groups. Once
again the court found a general charitable intent, and used the doctrine of cy pres to appoint a non-
University body to administer the scholarships. In University of Victoria Foundation v. British
Columbia (A.G.) (2000), 185 D.L.R. (4th) 182, 73 B.C.L.R. (3d) 375 (S.C.) [University of Victoria

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most interesting features of Canada Trust, however, is the public/private divide
advocated by Justice Tarnopolsky. While the public nature of this particular trust
meant that it had to conform to the public policy of non-discrimination, private family
trusts (and, we might also assume, private bequests in wills) would not be vulnerable
to the same arguments, and the overriding interest in these circumstances would be
freedom of testation. In contrast, the majority opinion in the case did not allude to any
such divide104 and openly implied that testamentary freedom could be sacrificed on
public policy grounds, a view shared by a differently constituted Ontario Court of
Appeal in the most recent decision on this issue.

In Fox v. Fox Estate,105 the testator appointed his wife as executrix of his estate

and gave her a life interest in seventy-five per cent of the residue. His son, Walter, was
given a life interest in the remaining twenty-five per cent and was to receive any
unallocated residue if he survived his mother. The will gave the widow extensive
powers to encroach upon the capital for the benefit of Walters children, and she used
these powers to allocate the residue away from the son, because she disapproved of
his marrying a non-Jew. The Ontario Court of Appeal held that this was an improper
exercise of the power, since the widows decision had been influenced by extraneous
matters, and she had dealt with the estate assets as if they were her own property. The
core of the decision is not so startling given that it is well established throughout the
Commonwealth that a trustees exercise of discretion can be challenged if it can be
shown that it was exercised for any improper motive.106 However, Justice Galligan
(with whom the other two judges were in broad agreement) went on to deride the
widows actions as abhorrent to contemporary community standards in being
motivated by religious prejudice, since [i]t is now settled that it is against public
policy to discriminate on grounds of race or religion.107 In reaching this conclusion,

cited to B.C.L.R.], the deceased had bequeathed part of his estate to the University of Victoria to
establish bursaries for practising Roman Catholics. Justice Maczko held that the relevant provisions
of the deceaseds will did not violate public policy since they were inoffensive and merely designed
to restrict the class of recipients to members of a particular faith, unlike the restrictions in the Leonard
Foundation Trust. Likewise, the bequest did not violate the British Columbia Human Rights Code
(R.S.B.C. 1996, c. 210), the court having to balance the interest of avoiding a relatively inoffensive
breach of its terms against upholding testamentary freedom as an important social interest that has
long been recognized in our society and is firmly rooted in our law (University of Victoria, ibid. at
380).

104 Justice Robins and Justice Osler acknowledged that that Foundation may have been privately
created, but had a clear public aspect to its purpose and administration (Canada Trust, supra note
96 at 494). However, unlike Justice Tarnopolsky, they did not explicitly link this to reasons for
invalidating the trust on public policy grounds or use it as a reason for distinguishing private family
arrangements.

105 (1996), 28 O.R. (3d) 496, 88 O.A.C. 201 (C.A.) [Fox cited to O.R.].
106 One of the older authorities to this effect is Tempest v. Lord Camoys (1882), 21 Ch. D. 571

(C.A.).

107 Fox, supra note 105 at 502.

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Justice Galligan cited the comments of Justice Robins in Canada Trust that are noted
above,108 and continued:

533

In that case, Robins J.A. was discussing the restraint which public policy

puts upon the freedom of the settlor to dispose of his property as he saw fit. If a
settlor cannot dispose of property in a fashion which discriminates upon racial
or religious grounds, it seems to me to follow that public policy also prohibits a
trustee from exercising her discretion for racial or religious reasons …

While there were decisions in the past which have upheld discriminatory
conditions in wills, … counsel in this case were not prepared to argue that any
court would today uphold a condition in a will which provides that a
beneficiary is to be disinherited if he or she marries outside of a particular
religious faith.109

The decision in Fox suggests that discriminatory conditions of a religious nature are
contrary to public policy whether imposed in the context of a private family trust or as
simple bequests in wills.110 There is no mention of any public/private split, and
although the restriction in this particular case was not imposed by the testator himself,
it is implicit in Justice Galligans judgment that it is not an option for will makers to
insert clauses of this nature even in the private sphere; testamentary freedom must
yield to public policy, and the decision is fairly strong on this point. Motive also
appears to be irrelevant: like the decision in Murley,111 the benevolent testator is given
no preference over a spiteful will maker.

Though the respective pronouncements on testamentary conditions in restraint of
religion in both Canada Trust and Fox are strictly obiter, we would argue that Justice
Galligans reasoning is more persuasive than that of Justice Tarnopolsky. The latter
does have the support of two of Canadas leading constitutional academics, Lorraine
Weinrib and Ernest Weinrib, who argue that since the essence of a charitable trust is a
public benefit and testamentary freedom manifests itself through this public benefit,
there is no conflict between freedom of testation and Charter values.112 In the context
of private family arrangements, however, the position is different:

108 See text accompanying note 98.
109 Ibid.
110 It is worth noting for comparative purposes that the position appears to be different in Australia,
where certain aspects of testamentary freedom are regarded as sacrosanct. Notwithstanding the
substantive equality provisions in both the Racial Discrimination Act 1975 (Cth.) and Anti-
Discrimination Act 1977 (N.S.W.), both s. 8(2) of the former and s. 55 of the latter specifically
exempt charitable gifts in wills. Thus, in Kay v. South Eastern Sydney Area Health Service, [2003]
NSWSC 292, where the deceased bequeathed the sum of A$10,000 to a childrens hospital for
treatment of White babies, the New South Wales Supreme Court upheld the condition on the basis
that it was not affected by either Act. However, the court held that a clause in the same will stipulating
that the deceaseds house should only be sold to a young white Australian couple was void for
uncertainty.

111 Supra note 93.
112 Supra note 92 at 68.

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Testamentary freedom is precisely the freedom to choose [the] beneficiary and
to set the conditions for the benefaction. As with any gift, the grounds of this
choice are entirely personal to the benefactor … To invoke Charter values to
upset what the testator has done strikes at the core of testamentary freedom in
circumstances so personal that Charter values are peripheral.113

Yet this ignores the pervasive influence of public policy as shaped by, among other
things, Charter values. The doctrine acts as a vessel for channelling constitutional
protections into private law;114 we cannot then claim that there is a more exclusive
personal sphere within this private law domain that is immune from public policy
arguments and associated judicial interference. While judges may be more reluctant to
intrude in exclusively private arrangements and may be more deferential to the wishes
of testators in a family context than in a scholarship context, surely Justice
Tarnopolsky is wrong in suggesting that the court has no power to intervene in the
former scenario because of a supposed public/private divide. The doctrine of policy
can override clauses in private dispositions; it does not require some kind of public
anchor to be applied. One only has to look at the law of contract for an illustration.
Like freedom of testation, freedom of contract has traditionally been regarded as one
of the hallmarks of the common law. Yet a contractual agreement between private
individuals may be declared illegal on public policy grounds if its terms are deemed to
be injurious to society or contra bonos mores,115 a concept that extends to contracts
involving religious and racial discrimination.116

In the context of the present discussion, the prohibition on discriminatory
covenants on the sale or occupation of land provides a pertinent illustration. In Re
Drummond Wren,117 land was purchased subject to a restrictive covenant that it was
not to be sold to Jews or persons of objectionable nationality. The purchaser having
applied to the Ontario High Court to modify or discharge the covenant, Justice
Mackay delivered a strong judgment on public policy and the need for parity.118
Declaring the covenant void, the judge remarked:

If sale of a piece of land can be prohibited to Jews, it can equally be prohibited
to Protestants, Catholics or other groups or denominations. … In my opinion,
nothing could be more calculated to create or deepen divisions between
existing religious and ethnic groups in this Province, or in this country, than the

113 Ibid.
114 Public policy is the channel through which constitutional values flow into private law (Barak,

supra note 88 at 237).

115 Girardy v. Richardson (1793), 1 Esp. 13, 170 E.R. 265 (K.B.), Lord Kenyon.
116 See the comments of the English Court of Appeal in Nagle v. Feilden, [1966] 1 All E.R. 689,

[1966] 2 W.L.R. 1027 (C.A.) [Nagle cited to All E.R.].

117 [1945] O.R. 778, [1945] 4 D.L.R. 674 (H.C.J.) [Drummond Wren cited to D.L.R.].
118 In ascertaining public policy, the judge considered a range of diverse sources including the
Charter of the United Nations, the Atlantic Charter, and speeches of President Roosevelt, Winston
Churchill and General de Gaulle, as well as burgeoning anti-discrimination legislation such as the
Racial Discrimination Act, S.O. 1944, c. 51.

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S. GRATTAN & H. CONWAY TESTAMENTARY CONDITIONS

535

sanction of a method of land transfer which would permit the segregation and
confinement of particular groups to particular business or residential areas …119

He continued,

It appears to me to be a moral duty, at least, to lend aid to all forces of cohesion,
and similarly to repel all fissiparous tendencies which would imperil national
unity. The common law Courts have … obviated the need for rigid
constitutional guarantees in our polity by their wise use of the doctrine of
public policy as an active agent in the promotion of the public weal.120

However, the contrary view was put forward some three years later in Re Noble and
Wolf.121 The case concerned the sale of a plot of land to be used as a holiday cottage
on the shores of Lake Huron but subject to a restrictive covenant that it should never
be sold, assigned, transferred, leased, … to, and … never be occupied or used … by
any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood. The
judge at first instance upheld the clause, and the Ontario Court of Appeal reached the
same conclusion. While the nature of a summer colony was such that property owners
should be congenial with one another, Chief Justice Robertson pronounced that the
law could not impose artificial standards of behaviour on the various occupants:

Doubtless, mutual goodwill and esteem among the people of the numerous
races that inhabit Canada is greatly to be desired, … but what is so desirable is
not a mere show of goodwill or a pretended esteem, such as might be assumed
to comply with a law made to enforce it. To be worth anything, … there is
required the goodwill and esteem of a free people, who genuinely feel, and
sincerely act upon, the sentiments they express. A wise appreciation of the
impotence of laws in the development of such genuine sentiments, rather than
mere formal observances, no doubt restrains our legislators from enacting, and
should restrain our Courts from propounding, rules of law to enforce what can
only be of natural growth, if it is to be of any value to anyone.122

The case subsequently went to the Supreme Court,123 though the Court avoided the
public policy issue by invalidating the covenant on the basis that it was uncertain and
did not touch and concern the land.124 However, the effect of provincial

119 Drummond Wren, supra note 117 at 678.
120 Ibid. at 679. However, the condition was also invalidated on other grounds, namely, that it was an

impermissible restraint on alienation and that it was uncertain on the basis of Clayton, supra note 37.

121 [1948] O.R. 579, [1948] 4 D.L.R. 123 (H.C.J.) [Noble (H.C.) cited to D.L.R.] affd [1949] O.R.
503, [1949] 4 D.L.R. 375 (C.A.) [Noble (C.A.) cited to D.L.R.]. For an overview of the case, see
James W. St. G. Walker, Race, Rights and the Law in the Supreme Court of Canada: Historical
Case Studies (Toronto: Wilfrid Laurier University Press for The Osgoode Society for Canadian Legal
History, 1997) c. 4.

122 Noble (C.A.), ibid. at 386.
123 Noble v. Alley, [1951] S.C.R. 64, [1951] 1 D.L.R. 321.
124 As required under the doctrine of Tulk v. Moxhay (1848), 2 Ph. 774, 41 E.R. 1143 (Ch.).
However, it is worth noting that the Supreme Court of Canada has acknowledged that the Ontario
Court of Appeal decision in Noble (C.A.) is still a valid precedent in Seneca College of Applied Arts
and Technology v. Bhadauria, [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193.

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conveyancing statutes and human rights legislation is that such covenants and
discriminatory conditions are now generally contrary to public policy.125 This is
significant given that the vendor and purchaser may have initially agreed to the
restriction; the fact that an arranged term will be ignored perhaps strengthens the
arguments for striking out a religious (or racial) condition that was not negotiated but
imposed unilaterally by a will maker.

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Finally, reference should be made to the standard work on succession law in

Canada. Five years after the Charter was enacted, the third edition of The Canadian
Law of Wills suggested that courts would still be unwilling to strike out conditions in
restraint of religion: It cannot be assumed that conditions attached to will gifts that
require the beneficiary to discriminate against persons on the basis of race, creed or
nationality are void as contrary to public policy.126 In contrast, the latest edition is
much more circumspect.127 Having announced that it seems safe to treat [such]
conditions … as void as contrary to public policy,128 the text refers to the provincial
statutes mentioned above and to the decision in Canada Trust. As regards section 15
of the Charter, reference is made to the grant of probate as a state or governmental
action, which in turn might prevent the granting of probate of a will that contains a
potentially discriminatory bequest or devise.129

In sum, there are strong indications that testamentary conditions in restraint of
religion are now open to challenge in Canada, as the constitutional guarantee of
equality in the Charter and anti-discrimination provisions in provincial legislation
combine to permeate private law and redefine traditional notions of public policy.
While the concept of parity has not eclipsed testamentary freedom, courts have at
least shown that they are willing to invalidate religious restraints on this basis, a
situation that bodes well for England and Northern Ireland in light of recent
developments in both jurisdictions.

125 See e.g. the Conveyancing and Law of Property Act, R.S.O. 1990, c. C-34, s. 22, which states
that covenants purporting to restrict the sale, ownership, occupation, or use of land because of race,
creed, or colour are void. Similar provisions are contained in the Law of Property Act, R.S.M. 1987, c.
L-90, s. 7 and the Land Title Act, R.S.B.C. 1996, c. 250, s. 222. Likewise, the Nova Scotia Human
Rights Act, R.S.N.S. 1989, c. 124, s. 5 prohibits discrimination as regards the purchase or sale of
property on account of religion or creed, while the Ontario Human Rights Code, supra note 100, s. 3
provides that every person having legal capacity has a right to contract on equal terms without
discrimination because of, inter alia, creed.

126 Thomas G. Feeney, The Canadian Law of Wills, 3d ed., vol. 2 (Toronto: Butterworths, 1987) at 253.
127 James MacKenzie, ed., Feeneys Canadian Law of Wills, 4th ed. (Ontario: Butterworths, 2000).
128 Ibid. at 16.28.
129 Ibid. at 16.29.

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IV. Is Change Imminent in England and Northern Ireland?

The most likely catalyst for change in England and Northern Ireland is the
European Convention on Human Rights.130 Northern Ireland, with its unique history,
also has a number of specific statutory measures that might strengthen arguments for
voiding testamentary conditions in restraint of religion on public policy grounds.

537

A. Domestic Law and the Incorporation of the ECHR

For fifty years following its inception in November 1950, the European
Convention on Human Rights influenced the law in the United Kingdom but was not
binding on domestic courts: its status was that of an interpretative aid that could, for
example, be cited to construe ambiguous legislation. However, any individual wishing
to pursue a remedy could only do so at the European Court of Human Rights in
Strasbourg.131 The Human Rights Act 1998,132 which came into effect throughout the
United Kingdom on 2 October 2000, incorporates the provisions of the ECHR into
domestic law, with the result that all courts are now bound to act in accordance with
and to uphold ECHR values.133 As with the Charter, the enactment of the HRA has
generated a large volume of scholarly discussion as to the precise impact of the ECHR
on private law disputes. Subsection 3(1) of the HRA stipulates that primary
legislation and subordinate legislation must be read and given effect in a way which is
compatible with the [ECHR] rights, which suggests that the ECHR applies to all
statutes, whether public or private in nature.134 However, the extent to which it
impacts on disputes governed exclusively by the common law is less clear. Subsection
6(1) of the HRA makes it unlawful for a public authority to act in a manner that is
incompatible with an ECHR right, while subsection 6(3) specifically includes a court
or tribunal within this definition.135 The textual debates that have surrounded this
provision have centred on whether the express inclusion of a court as a public
authority merely requires the courts to apply the ECHR in their own sphere, say, in
ensuring the right to a fair trial,136 or whether it introduces a similar principle to that
adopted by the United States Supreme Court in the famous case of Shelley v.
Kraemer.137 In that case, a private restrictive covenant that discriminated on racial
grounds was not itself illegal, but once judicial enforcement of it was sought, the

130 Supra note 9.
131 See generally P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European

Convention on Human Rights, 3d ed. (Boston: Kluwer Law International, 1998).

132 Supra note 11.
133 For an overview, see D. McGoldrick, The United Kingdoms Human Rights Act 1998 in

Theory and Practice (2001) 50 I.C.L.Q. 901.

134 HRA, supra note 11, s. 3(1). See also Gavin Phillipson, The Human Rights Act, Horizontal

Effect and the Common Law: A Bang or a Whimper? (1999) 62 Mod. L. Rev. 824.

135 HRA, ibid., s. 6.
136 See e.g. Sydney Kentridge, Lessons from South Africa in Basil S. Markesinis, ed., The Impact

of the Human Rights Bill on English Law (Oxford: Oxford University Press, 1998) 25 at 28.

137 334 U.S. 1 (1948) [Shelley].

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discrimination it contained could no longer be described as a private choice and
would have violated the Fourteenth Amendment to the United States Constitution,
which guarantees equal treatment before the law.138 After all, the status valid but
unenforceable is not unfamiliar to common law property systems in the form of the
trust of imperfect obligation.

[Vol. 50

Not surprisingly, when the text of the HRA itself has generated such divisions of
opinion, clarification has been sought from the parliamentary debates that preceded its
enactment. During the second reading, Lord Irvine, the Lord Chancellor, seemed to
reject emphatically the idea that the HRA should apply between private parties:
[Section 6] should apply only to public authorities, however defined, and not to
private individuals. … The [ECHR] had its origins in a desire to protect people from
the misuse of power by the state, rather than from the actions of private
individuals.139 However, although Lord Irvine made it clear that the HRA did not
create private rights, if one looks again at Hansard, one finds the following comments,
made in reply to an amendment proposed by Lord Wakeham that would have
specifically provided that a court had no duty to act compatibly with the ECHR in a
case where neither party before it was a public authority:

We … believe that it is right as a matter of principle for the courts to have the
duty of acting compatibly with the [ECHR] not only in cases involving other
public authorities but also in developing the common law in deciding cases
between individuals. Why should they not? In preparing this Bill, we have
taken the view that it is the other course, that of excluding [ECHR]
considerations altogether from cases between individuals, which would have to
be justified. We do not think that that would be justifiable; nor, indeed, do we
think it would be practicable.140

Thus, the debates do little to resolve the difficulty, although it would seem that the
Lord Chancellor clearly envisaged that the HRA would have some effect on private
litigation. No doubt much of this uncertainty will be removed in time as the
jurisprudence on section 6 begins to develop. It would be surprising, however, in light
both of the express inclusion of the courts141 and of what Professor Wade has referred
to as the spirit of the act,142 if the HRA were not to have at least a spill-over effect
on the development of the common law. Academic opinion has been divided, with

138 U.S. Const. amend. XIV. Note that Shelley was not about a testamentary condition. There is no
US authority directly on testamentary conditions in restraint of race or religion, but while there is no
guarantee that the Shelley principle would be applied, it is certainly arguable that judicial enforcement
of religious and racial conditions in wills also violates the Fourteenth Amendment by analogy with
Shelley.

139 U.K., H.L., Parliamentary Debates, vol. 582, col. 1227 at cols. 1231-32 (3 November 1997).
140 U.K., H.L., Parliamentary Debates, vol. 583, col. 783 at col. 783 (24 November 1997)

[emphasis added].

141 Murray Hunt argues that the inclusion of the word court must be intended to ensure that all
law, other than unavoidably incompatible legislation, is to be subjected to Convention rights
(Murray Hunt, The Horizontal Effect of the Human Rights Act (1998) P.L. 423 at 440-41).

142 H. Wade, Horizons of Horizontability (2000) 116 Law Q. Rev. 217 at 224.

S. GRATTAN & H. CONWAY TESTAMENTARY CONDITIONS

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some commentators suggesting that courts will be obliged to develop legal principles
in accordance with the ECHR (direct horizontal effect).143 However, the bulk of
opinion suggests that the HRA will have a less pervasive effect, with judges merely
being influenced by ECHR rights and values in developing the common law
(indirect horizontal effect).144

539

B. Application of the ECHR to Testamentary Conditions in Restraint

of Religion

the right

Everyone has
to freedom of thought,
conscience and religion; this right includes freedom to
change his religion or belief and freedom … to manifest
his religion or belief, in worship, teaching, practice and
observance.

Article 9(1) of

the ECHR:
Freedom of thought, conscience and
religion.

The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status.

Article 14 of

the ECHR:

Prohibition of discrimination.

It has already been noted that when Blathwayt was before the House of Lords,
Lord Wilberforce acknowledged that the ECHR had some relevance to the issue
before him, because conceptions of public policy should move with the times and …
widely accepted treaties … may point the direction in which such conceptions, as
applied by the courts, ought to move.145 Yet his Lordship was in no doubt as to how
the English courts should resolve any clash between the values protected by the
ECHR and those prioritized by the common law, for although he was prepared to
concede that the forfeiture provision before him was potentially inconsistent with
standards now widely accepted, he was unprepared to allow this to override another

143 See the discussion in Wade, ibid.
144 See Hunt, supra note 141, Phillipson, supra note 134, and Nicholas Bamforth, The True
Horizontal Effect of the Human Rights Act 1998 (2001) 117 Law Q. Rev. 34. For the minority
view that the ECHR is specifically concerned with relations between an individual and the state and
thus has purely vertical effect, see Richard Buxton, The Human Rights Act and Private Law
(2000) 116 Law Q. Rev. 48 and Thomas Raphael, The Problem of Horizontal Effect (2000) Eur.
H.R.L. Rev. 493.

145 Blathwayt, supra note 32 at 426.

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policy firmly rooted in our lawthat of testamentary freedom.146 Indeed, whenever
courts in both England and Northern Ireland have been asked to balance the testators
right to property against the rights of the beneficiary, they have unashamedly
preferred the former. The key question now is whether the incorporation of the ECHR
into domestic law will persuade the judiciary to shift this balance in favour of the
beneficiary and allow his or her interests to take precedence over the policy of
testamentary freedom. On the strength of the existing jurisprudence from the
Strasbourg organs, it is by no means certain that UK courts will be prepared to regard
testamentary conditions in restraint of religion as incompatible with ECHR values.

First, it must be remembered that an individuals right to designate the successors
to his or her property, subject to limited state interference,147 is itself safeguarded by
the ECHR. Article 1 of Protocol 1 gives a property owner the right to peaceful
enjoyment of his or her possessions, free from unjustifiable interference by the
state.148 Secondly, the argument that a condition in restraint of religion infringes a
donees rights under article 9 of the ECHR can be refuted by the element of choice
that is inherent in any testamentary condition. This choice defence has in the past
proved persuasive at Strasbourg in relation to whether an individual has been denied
freedom of religion.149 It would still be legitimate for UK courts to argue, based on
these cases, that the artificial nature of the restraint does not actually infringe a
beneficiarys freedom of religion. However, domestic courts are free to develop their
own distinct line of jurisprudence under the ECHR,150 while the inherently
discriminatory nature of the restriction may hold sway over arguments based on
personal choice.

The testators right to property, as protected by article 1 of Protocol 1, and the
beneficiarys right to freedom of religion, as enshrined in article 9, are the most
pertinent rights when considering the compatibility of conditions in restraint of
religion with the ECHR. However, the balancing exercise would not be complete
without some consideration of the beneficiarys right to property under article 1 of

146 Ibid.
147 For example, the family provision jurisdiction.
148 Art. 1 of Protocol No. 1 to the ECHR, supra note 9, reads: Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law and by the general
principles of international law. … For a useful overview of this article, see Deborah Rook, Property
Law and Human Rights (London: Blackstone Press, 2001) c. 4.

149 See Knudsen v. Norway (1986), 8 E.H.R.R. 63 and Karlsson v. Sweden (8 September 1988),
App. No. 12356/86 (Eur. Ct. H.R.), online: HUDOC Database .

150 It has already been noted that before the HRA came into force, an individual asserting the
infringement of an ECHR right had to pursue his or her case before the European Court of Human
Rights in Strasbourg: see text accompanying note 131. The HRA states that a UK court or tribunal,
when determining a question that has arisen in connection with an ECHR right, must take into
account the pre-existing Strasbourg case law insofar as it is relevant to the current proceedings: HRA,
supra note 11, s. 2(1). However, domestic courts are not obliged to follow these decisions.

541

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Protocol 1 (i.e., the right to inherit property freed from restrictions) and the testators
right to freedom of religion under article 9 (i.e., the right to encourage and promote
adherence to his or her faith). To date, there is little authority to support either
approach. It is particularly unlikely that a court would find an argument based on a
breach of the testators freedom of religion attractive. While there have been several
cases concerning burial rights, which acknowledge that the dead may have the right to
express their religion,151 it would be very surprising if a court would be willing to
extend this principle beyond the particular context of a very emotive issue. The
argument based on the beneficiarys right to property is stronger but is still not
compelling. It is well-established that the ECHR does not guarantee an individuals
right to receive an inheritance (this being a mere spes successionis and not an actual
interest in property).152 In this respect, a distinction might usefully be drawn between
conditions subsequent and conditions precedent. Breach of the former divests an
interest that has already vested (and therefore could be said to interfere with a
property interest), whereas when breach of a condition precedent occurs, the gift
never vests in the beneficiary. Even in the case of a condition subsequent, however, it
is unlikely that a UK court would be persuaded to void a testamentary condition (of
any nature) on the ground that it breaches the donees right to peaceful enjoyment of
his or her property.153 One might attempt to argue that cases such as Marckx v.
Belgium154 establish the general principle that when a state chooses to regulate the law
of inheritance, it must do so in a nondiscriminatory manner. The discrimination
outlawed in Marckx was the less favourable treatment of children whose parents were
unmarried under Belgian intestacy law. Indeed, all of the ECHR cases to date that deal
with discrimination in succession matters have involved intestate deaths,155 and there
has been no guidance whatsoever on the principles, if any, that might apply to
testamentary succession.

As yet, there has been no post-incorporation litigation directly on the validity of
testamentary conditions in restraint of religion in either England or Northern
Ireland.156 Within the last twenty-four months, however, the English High Court has

151 See Re Durrington Cemetery, [2000] 3 W.L.R. 1322 (Const. Ct.) and Re Crawley Green Road
Cemetery, [2001] 2 W.L.R. 1175 (Const. Ct.). See also the discussion in Heather Conway, Dead, but
Not Buried: Bodies, Burial and Family Conflicts (2003) 23 L.S. 423 at 447-48.

152 See Marckx v. Belgium (1979), 31 Eur. Ct. H.R. (Ser. A) 1, 2 E.H.R.R. 330 [Marckx cited to

E.H.R.R.].

153 See Gary Watt, Property Rights and Wrongs: The Frontiers of Forfeiture in Elizabeth Cooke,

ed., Modern Studies in Property Law, vol. 1 (Oxford: Hart Publishing, 2001) 115 at 125.

154 Supra note 152.
155 See Inze v. Austria (1987), 126 Eur. Ct. H.R. (Ser. A) 1, 10 E.H.R.R. 394 and Camp and Bourimi

v. Netherlands (2000), X Eur. Ct. H.R. (Ser. A) 117.

156 It is worth noting, however, that there is one isolated decision in the Republic of Ireland that
suggests that conditions in restraint of religion are void as being unconstitutional. Article 44.2.1. of
the Constitution of Ireland, 1937 guarantees freedom of conscience and profession of faith. In the
unreported Ireland High Court decision Re Doyle (1972), the condition required the donee to be a
Roman Catholic at the testators death and to give an undertaking to her parish priest that she would

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handed down a decision that tends to suggest that the judiciary in that country remains
as pro-testamentary freedom today as it was in the mid-1970s when Blathwayt157 was
before the House of Lords. The case in question, Nathan v. Leonard,158 concerned the
validity of a clause in a will that provided that all of the beneficiaries lost their
entitlement if any beneficiary challenged the terms of the will. One of the submissions
made on behalf of some of the beneficiaries was that this clause was void on the
grounds of public policy, because its effect was to deter an applicant from making a
claim under the Inheritance Act 1975,159 and that the policy of the law was that
reasonable provision should be made for dependants. This type of clause is already
regarded as being contrary to public policy in both Canada160 and Australia.161
However, John Martin, Q.C., sitting as a deputy judge of the English High Court,
refused to follow these Commonwealth authorities on the ground that mere
deterrence was insufficient to make a condition void as contrary to public policy. The
deputy judge highlighted the fact that the condition did not prevent the applicant from
making his claim: if he did, he forfeited his interest, but this would be taken into
account by the court when deciding whether reasonable financial provision162 had
been made. Pertinent to the subject matter of this paper, the learned deputy judge also
referred to the decision of the House of Lords in Blathwayt, observing that it
contain[ed] a warning against taking too narrow a view of public policy and adding,
perhaps rather ominously:

I do not think the fact that such conditions may present applicants with difficult
choices is an adequate ground for holding them void on public policy grounds …163

Nathan is a startling endorsement of testamentary freedom, upholding a clause

whereby contented beneficiaries forfeit their entire entitlement under a will simply
because another beneficiary decides to pursue a challenge.164 If this decision is
indicative of the prevailing judicial mindset, it is evident that the courts still regard
testamentary freedom as a highly revered feature of the English common law.
Moreover, it is clear that domestic courts are not afraid to take a different approach
from their Commonwealth counterparts. Whether or not they would adopt a similar

remain one. Justice Kenny held the condition void as being impossible to perform, but added that it
was also void as being unconstitutional. However, unlike both Canada and the UK, the Republic of
Ireland recognizes an independent cause of action between private parties for breach of certain
constitutionally protected rights. It is surprising that such a significant decision has remained
unreported.

157 Supra note 32.
158 [2003] 1 W.L.R. 827 (Ch.) [Nathan].
159 Supra note 5. As has been noted, this is the English equivalent to the various dependants relief
statutes in Canada, such as the Succession Law Reform Act, R.S.O. 1990, c. S-26, the Family Relief
Act, R.S.A. 2000, c. F-5, or the Wills Variation Act, R.S.B.C. 1996, c. 490.

160 See Re Kent (1982), 139 D.L.R. (3d) 318, 38 B.C.L.R. 216 (S.C.).
161 Re Gaynor, [1960] V.R. 640 (Vic. S.C.).
162 Note that the basis for any claim under the Inheritance Act 1975, supra note 5, is that the

deceased failed to make reasonable financial provision for the applicant.

163 Nathan, supra note 158 at 833.
164 The actual clause in Nathan was voided on the grounds of uncertainty.

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stance in respect of testamentary conditions in restraint of religion, given the
burgeoning developments in Canada post-Charter, remains to be seen.

543

Finally, it has been seen that in Canada, the thrust for a more rigorous judicial
scrutiny of testamentary conditions in restraint of religion has come from the equality
provision of the Charter. It has not been necessary, therefore, for the Canadian courts to
explore the scope of the Charters freedom of religion provision. Article 14 of the
ECHR prohibits discrimination but, unlike its Canadian counterpart, is not free-standing
and may only be invoked in conjunction with another ECHR right. In the context of the
present discussion, the most likely provision is article 9: a disappointed beneficiary may
argue discrimination in the curtailing of his or her religious freedom by the terms of the
will. While article 14 is parasitic in nature, it would seem that a claimant merely has to
show that his or her claim comes within the material scope of a substantive ECHR right.
There is no need to establish an actual breach of that right.165 Such an expansive
approach to the application of article 14 may work in the beneficiarys favour, since he
or she would not have to prove an actual violation of article 9. The mere fact that the
condition touched on religious freedoms would suffice, with the consequent emphasis
on equality under article 14 bringing it closer to the Canadian position.

C. Religious Overtures and the Northern Ireland Dimension

Writing in 1943 in defence of testamentary conditions in restraint of religion (and
those who insert them), Benas wrote:

[R]estraints of [this] kind are not necessarily attributable to a negative attitude
of intolerance but can be envisaged as directly or indirectly a positive urge in
favour of limitation to the testators own fold [and this] is probably one of the
main factors which determined the Courts to hold that such provisions were
valid as not being contrary to public policy.166

The context was an article aimed at the legal profession, instructing its members how
to circumvent the unsatisfactory outcome in Clayton167 and the description of a
positive urge may well then have been appropriate to clauses inserted by a Jewish
minority to prevent their children marrying out. As regards Northern Ireland,
however, it is clear that a good number of the conditions which we encountered were
unquestionably inserted out of the very negative urges of blatant bigotry and
sectarianism and involve a discrimination which goes beyond an attempt to impose a
particular form of ideology on another person.168 Moreover, our research confirmed

165 See Belgian Linguistic (No. 2) (1968), 6 Eur. Ct. H.R. (Ser. A) 1, 1 E.H.R.R. 252; Abdulaziz,

Cabales and Balkandali v. United Kingdom (1985), 94 Eur. Ct. H.R. (Ser. A) 1, 7 E.H.R.R. 471.

166 Bertram B. Benas, Conditions in Restraint of Religion (1943) 8 The Conveyancer and

Property Lawyer 6 at 10.

167 Supra note 37.
168 Andrew Lyall, Land Law in Ireland (Dublin: Oaktree Press, 1994) at 189, commenting on the

condition in Knox, supra note 29.

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something we had already suspected from reading the reported caselaw:169
testamentary conditions in restraint of religion (whether related to the religious
affiliation of the donee or tied to the alienation of land, marriage, or the upbringing of
children) have almost invariably been inserted by Protestant testators. Of the
conditions found in wills proved in Northern Ireland in 1937, 1967, and 1997, only a
solitary example came from the will of a Catholic testator.170 While one would expect
a higher incidence of will making (and consequently testamentary conditions) among
the wealthier Protestant community, this fact alone should not account for such a
dearth of conditions in restraint of religion among the Catholic community. Protestants
have historically owned more land in Northern Ireland, yet there have always been a
number of Catholic-owned small holdings, especially in the west of the jurisdiction.
There is clearly something in the psyche of the typical Ulster Protestant, particularly that
of the Ulster Protestant farmer,171 that prompts this urge to ensure that land does not fall
under the control of members of the other religious community. This so-called siege
mentality has been well-documented elsewhere,172 and there can be few places in
which land ownership has a greater political significance than in Northern Ireland.

Religious tensions have permeated all aspects of life in Northern Ireland. In
contrast to England, where there are still no statutory provisions outlawing
discrimination on grounds of religion, Northern Ireland has had anti-discrimination
legislation (primarily relating to employment) for some years.173 However, the current
political climate and continuing peace process have resulted in the recent enactment
of more extensive provisions. Under the terms of the Good Friday Agreement of April
1998, equality and human rights discourses assumed a central role in the new
constitutional settlement for Northern Ireland.174 It affirmed the commitment of the
political parties to the civil rights and religious liberties of everyone in the community,

169 See e.g. McCausland I, supra note 32 and McKenna, supra note 62.
170 See Dawson, Grattan & Lundy, supra note 8. These were the three sample years chosen for an
unrelated research project exploring charitable giving in wills. While some thirty religious conditions
were found in the course of the research, this figure is not exhaustive since the project was addressing
other issues. However, it is still a significant number for such a small jurisdiction.

171 Most of the conditions in restraint of religion were found in the wills of rural testators.
172 See generally Pamela Clayton, Enemies and Passing Friends: Settler Ideologies in Twentieth
Century Ulster (London: Pluto Press, 1996) and John D. Brewer & Gareth I. Higgins, Anti-
Catholicism in Northern Ireland, 1600-1998: The Mote and the Beam (Basingstoke: Macmillan Press,
1998).

173 The original legislation was the Fair Employment (Northern Ireland) Act 1976 (U.K.), 1976, c.
25, which prohibited discrimination on grounds of religion or political opinion by all employers, and
not just public authorities in Northern Ireland.

174 The Good Friday Agreement (alternatively referred to as the Belfast Agreement) was signed on
18 April 1998 following months of delicate multi-party political negotiations, and was passed by the
people of Northern Ireland and the Republic of Ireland in separate referenda held in May 1998. As to
the formation, composition, and effect of the Good Friday Agreement, see the special issue of the
Fordham International Law Journal entitled Analysis of the Northern Ireland Peace Agreement
((1999) 22:4 Fordham Intl L.J.) and Colin J. Harvey, ed., Human Rights, Equality and Democratic
Renewal in Northern Ireland (Oxford: Hart Publishing, 2001) c. 2.

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with reference to the right to freedom and expression of religion and the right to equal
opportunity in all social and economic activity as basic human rights, and to the need
for promoting social inclusion as part of a broad spectrum of social, economic, and
cultural issues.175 One of the key pieces of legislation in the quest for a post-Good
Friday Agreement mainstream equality agenda was the Northern Ireland Act 1998.176
For present purposes, the main provisions of the 1998 Act are sections 75 and 76.
Section 75 imposes a statutory duty on public authorities to promote equality:

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(1) A public authority shall in carrying out its functions relating to
Northern Ireland have due regard to the need to promote equality of
opportunity

(a) between persons of different religious belief, political opinion,

racial group, age, marital status or sexual orientation;

(2) Without prejudice to its obligations under subsection (1), a public
authority shall in carrying out its functions relating to Northern Ireland have
regard to the desirability of promoting good relations between persons of
different religious belief, political opinion or racial group.177

Discrimination by public authorities is dealt with under section 76, which provides:

(1) It shall be unlawful for a public authority carrying out functions
relating to Northern Ireland to discriminate, or to aid or incite another person to
discriminate, against a person or class of person on the ground of religious
belief or political opinion.178

Public authorities now have a statutory obligation to ensure that their various
functions are carried out with due regard to promoting equality. It appears that
Northern Ireland judges have been reluctant to make judicial decisions amenable to
equality discourses to date.179 In contrast to section 6 of the HRA,180 the definition of a
public authority for the purposes of the 1998 Act does not expressly include a court.
The extent to which the Northern Irish judiciary will allow the spirit of sections 75
and 76 to develop the common law in disputes between private individuals must be a
matter of speculation, but there is a strong possibility that this legislative trend will
precipitate a change in the courts policy to the validity of religious restraints in wills.
The fact that statistically such conditions operate disproportionately against the

175 Good Friday Agreement, ibid., under the heading Rights, Safeguards and Equality of

Opportunity.

176 Northern Ireland Act 1998 (U.K.), 1998, c. 47 [1998 Act]. For an excellent overview, see

Christopher McCrudden, Equality in Harvey, supra note 174 at 75.

177 1998 Act, ibid., s. 75.
178 Ibid., s. 76.
179 For example, while the Northern Ireland Court Service now compiles statistics on employment
and the religious affiliation of its employees, it has refused to collect information about the religious
affiliation of parties before the courts in civil or criminal proceedings.

180 See text accompanying note 135.

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Catholic community may be the ultimate factor in persuading the judiciary that they
should be struck down.

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Another central piece of legislation in the pursuit of a post-conflict equality
framework in Northern Ireland is the Fair Employment and Treatment (Northern
Ireland) Order 1998.181 While the primary aim of the 1998 Order was to consolidate
and extend the countrys unique fair employment laws, it also prohibits unlawful
discrimination in the provision of goods, facilities, and services, and in the
management and disposal of premises. Article 29 makes it unlawful for a person to
discriminate against another on grounds of religious belief or political opinion when
selling land.182 While this impacts particularly on the restraint of alienation to persons
of a particular religious denomination, it is worth noting that devises (and inter vivos
gifts) are outside its remit. Moreover, article 29 preserves an element of the
public/private divide by expressly excluding private sales (namely, those that are
not effected through an estate agent or that have not been advertised).183 Even if a
particular transaction falls within the scope of article 29, there is nothing to stop a
vendor rejecting a bid from a purchaser who is perceived to be of a particular
religious persuasion, since the vendor is not required to explain why he or she prefers
one offer on his or her property to another. If, however, sales of land do become
subject to scrutiny under article 29, this might also influence judicial attitudes toward
testamentary conditions in restraint of religion in Northern Ireland on the basis that
the legislative provision is an indicator of current public policy.

Finally, the most potent means of challenging religious restraints may yet emerge
under the proposed Bill of Rights for Northern Ireland, as envisaged under the terms
of the Good Friday Agreement.184 Section 3 of the most recent Draft Bill safeguards
identity and community rights and stipulates that the law of Northern Ireland shall
ensure just and equal treatment for the identities, ethos and aspirations of both main
communities.185 The equality agenda then manifests itself once again in section 4,

181 Supra note 24.
182 Ibid., para. 29(1).
183 Ibid., para. 29(2).
184 The Northern Ireland Human Rights Commission was established by the 1998 Act, and is
required by the legislation to define a Bill of Rights for Northern Ireland in accordance with the Good
Friday Agreement, which states that the Bill should reflect the particular circumstances of Northern
Ireland, drawing on international standards but with rights reflecting the principles of mutual respect
for the identity and ethos of both religious communities and parity of esteem. Progress on the Bill has
been somewhat slow to date, with the consultation process on the most recent draft bill ending in
April 2004. For information about the various stages in the process, see Northern Ireland Human
Rights Commission, online: . The text of the latest draft bill is found in
Northern Ireland Human Rights Commission, Progressing A Bill of Rights for Northern Ireland: An
Update (Belfast: Northern Ireland Human Rights Commission, 2004) at 93, online: Northern Ireland
Human Rights Commission [Draft Bill].

185 Draft Bill, ibid., s. 3(2).

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which begins with the basic affirmation that [e]veryone is equal before and under the
law and has the right to equal protection and equal benefit of the law and continues:

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(3) Everyone has the right to be protected against any direct or indirect
discrimination whatsoever on any ground (or combination of grounds) such
as … religion or belief, … property …186

Unlike article 14 of the European Convention on Human Rights, section 4 is a free-
standing equality provision that protects against discrimination per se. The specific
references to religion and property could conceivably allow a disgruntled beneficiary
to attack the validity of a religious restraint on these grounds, while the notion of
indirect discrimination might negate the counter-argument that the ultimate choice lies
with the beneficiary. The practical effect of the condition is that it impacts on persons
of a specified religion. However, the most significant feature of the Draft Bill for
present purposes is its direct application to the private sphere. Subsection 1(3) states:

A court, tribunal or other body, when interpreting any legislation or when
developing the common law, must, so far as it is possible to do so, read and
give effect to the legislation or common law in a way which is compatible with
the rights contained in this Bill of Rights.187

Unlike the Canadian Charter and the ECHR, or indeed the 1998 Act itself, the
proposed Bill of Rights is not dependent on judicial receptiveness to channelling
public law concepts into the private domain by way of a spill-over effect. The Bill
of Rights is intended to affect all relationships in Northern Ireland, including those
between private individuals.

While these new measures have yet to prove their effectiveness, they may ultimately
sound the death knell for testamentary conditions in restraint of religion in Northern Ireland.
There certainly appears to be more armoury for attacking them than in any other comparable
jurisdiction. The need for judges to be amenable to equality and anti-discrimination
discourses is fundamental to the successful implementation of the post-Good Friday
Agreement framework. In light of this groundswell, it may be difficult for the Northern
Ireland judiciary to withstand the turning of the tide of testamentary freedom.

186 Ibid., s. 4.
187 Ibid., s. 1(3).

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V. Testamentary Freedom, Religious Restraints, and the Changing

Concept of Public Policy

[T]estamentary freedom can remain the basic principle
of the law on inheritance only so long as most people
exercise that freedom in ways which are consistent with
the public interest, however defined.

Janet Finch

et al., Wills,

Inheritance and Families.188

In Pepsi-Cola, the Supreme Court of Canada remarked that the common law
does not exist in a vacuum, but reflects the experience of the past, the reality of
modern social concerns and a sensitivity to the future.189 Such concerns and
sensitivities are replicated in the doctrine of public policy. The fact that judges on both
sides of the Atlantic must now develop the common law in accordance with the rights
enshrined in the Charter and in the ECHR introduces a new range of societal ideals
into this doctrine. In the context of testamentary conditions in restraint of religion, the
fundamental guarantee of equality (and possibly also freedom of religion) may be
harnessed to strike out these restrictions on public policy grounds. However, such
constitutional norms must be reconciled with another central tenet of the common
law: respect for private property rights and freedom of testation. How do we square
this with notions of equal treatment for all citizens, irrespective of religious belief?

Testamentary freedom has been described as a traditional and fundamental
aspect of the right of property.190 Indeed, probably the most substantial argument for
testamentary freedom is that it is a logical extension of an owners freedom to deal
with his or her property while alive.191 One might then argue that courts should
tolerate attempts by will makers to control the lifestyle choices of a beneficiary by
attaching religious conditions to certain bequests as a natural incident of freedom of
testation.192 This was certainly the case throughout the formative period of the
common law: testamentary freedom was paramount, with judges championing the

188 (Oxford: Clarendon Press, 1996) at 23.
189 Pepsi-Cola, supra note 92 at 167.
190 Marckx, supra note 152 at para. 63.
191 See Hugo Grotius, The Jurisprudence of Holland, 2nd ed. (Aalen: Scientia, 1977) vol. 2 at para.
II.xiv.1; John Stuart Mill, Principles of Political Economy (Oxford: Oxford University Press, 1999)
book 2, c. 2 at para. 4. A number of other arguments have been advanced. It has been argued that
testamentary freedom is an incentive to industry, as it promotes the accumulation of wealth by
testators and encourages self-reliance in their children, who are not guaranteed an inheritance. See
generally James Morton Jr., The Theory of Inheritance (1894-1895) 8 Harv. L. Rev. 161. Today, the
most compelling argument in favour of testamentary freedom is probably the fact that it has a greater
likelihood of delivering justice in inheritance matters to a post-modern multicultural society in which
there is no longer a consensus of social mores. See generally Finch et al., supra note 188.

192 See J.W. Harris, Property and Justice (Oxford: Clarendon Press, 1996) at 254.

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unbridled right of testators to dispose of their property as they saw fit. However, the
upholding of religious restraints does not reflect the norms and ideals of modern
society as enshrined in the Charter and the ECHR. Public policy has traditionally
been described as a tool that should only be used where the harm to the community is
substantially incontestable.193 The inherently discriminatory nature of conditions in
restraint of religion abuses not only freedom of religion, but more importantly the
core value of equality, which brings it firmly within the realms of public policy. All
donative transfers are inherently discriminatory as will makers choose the objects of
their bounty. Yet, in the case of testamentary conditions in restraint of religion, the
discrimination goes a step further, since the gift is grounded in the belief that a class
of individuals should be treated as inferior because of their religious background.
Likewise, it is irrelevant whether testators are propagating their own beliefs or simply
perpetuating individual prejudices, since the outcome is the same in each case: the
beneficiary is required to act, not according to the dictates of his or her own
conscience, but in accordance with the religious convictions of the testator. The fact
that the beneficiary ultimately has the choice to accept the restriction or disclaim the
gift is also of no consequence. While Lord Wilberforce in Blathwayt may have been
swayed by this particular rationale for leaving as much power as possible in the hands
of the testator,194 the argument that choice negates public policy concerns prompts the
simple riposte that it is bad public policy to accept discrimination at all.

It is noteworthy that in the twenty years that have passed since the enactment of
the Charter, Murley195 is the sole reported decision that deals directly with the validity
of testamentary conditions in restraint of religion. One hopes that one explanation for
the dearth of litigation is the fact that such clauses are becoming rarer, as lawyers are
more wary of mechanically replicating their clients instructions, on the basis that
courts may no longer be amenable to constraining beneficiaries choices should the
offending restriction be challenged.196 Research indicates that the incidence of such
conditions in Northern Ireland decreased dramatically in the wills proved in 1997,
when compared to those proved thirty years before.197 It is likely that the ECHR and
anti-discrimination legislation will accelerate this trend. This development is
welcome, but unfortunately it remains the case that too many religious restraints are
being inserted by Northern Ireland testators. Those who seek to uphold such
conditions may argue for the sanctity of testamentary freedom and the fact that the
restriction is operating exclusively in the non-public sphere. Yet where testamentary

193 Fender v. St John-Mildmay (1937), [1938] A.C. 1 at 12, [1937] 3 All E.R. 402 (H.L.), Lord

Atkin, applied in Re Millar Estate, [1938] S.C.R. 1, 1 D.L.R. 65.

194 Supra note 32 at 426.
195 Supra note 93.
196 Lawyers who draft wills that result in litigation risk being responsible for the legal cost of the
challenge. See generally M. Frost and P. Reed, With the Best Will in the World: Negligence in Will
Preparation, 2d ed. (London: Legalese, 2002). This book deals with authorities from throughout the
Commonwealth.

197 See Dawson, Grattan & Lundy, supra note 8.

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freedom is being harnessed to promote religious intolerance, we would argue that the
traditionally privileged status of the private domain can no longer be justified.

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Conclusion

The welfare of society demands that the law should set
limits to the power of the hand of the dead to control
human affairs.

Austin Wakeman Scott, Control

of Property by the Dead.198

It is trite law that public policy cannot remain immutable … [and] must change

with the passage of time.199 Yet, equally, every lawyer knows that public policy is:

a very unruly horse; it is also a treacherous ground for legal decision; a
very unstable and dangerous foundation on which to build until made safe by
decision; slippery ground; a vague and unsatisfactory term and calculated
to lead to uncertainty and error when applied to the decision of legal rights;
and much else.200

While it is prudent that the malleable concept of public policy is not changed lightly
(especially in the realms of property law where the virtue of certainty is particularly
valued), it is surely clear that the policies applied by courts in the case law discussed
in Parts I and II of this article no longer reflect prevailing attitudes and values. There
are now broader issues surrounding the interface between constitutional norms and
private law, and the extent to which the rich rhetoric of the former have impacted on
the traditional conservatism of the latter. Canadian courts have been receptive to
change in the wake of the Charter, with the right to equal treatment for all citizens
trumping discriminatory or offensive clauses in private documents. At present, it is
unclear what impact the newly incorporated European Convention on Human Rights
will have on testamentary conditions in restraint of religion in England and Northern
Ireland. It is hoped, however, that courts will be persuaded that in any civilized
society, discrimination, even when confined to private affairs, is contrary to the
fundamental ideals of human dignity and equality. Of course, this is particularly so
where the society in question has been torn apart by thirty years of sectarian violence
and is currently in the midst of a conflict resolution process. There exists enough
religious prejudice in Northern Ireland, without the law condoning its perpetuation
from beyond the grave. Fewespecially those who have experience in the
jurisdictionare naive enough to believe that striking out these clauses will of itself
precipitate the necessary change in the attitudes or behaviour of property owners, let
alone eradicate the ingrained religious intolerance that exists in some members of
society. It has long been accepted that, where restrictions are placed on testamentary

198 (1916-1917) 65 U. Pa. L. Rev. 527 at 527.
199 Nagle, supra note 116 at 696, Danckwerts L.J.
200 Church Property Trustees, Diocese of Newcastle v. Ebbeck (1960), 104 C.L.R. 394 at 415

(H.C.A.), Windeyer J. [footnotes omitted].

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freedom, property owners will find a way to circumvent the limitations. As William
Godwin opined over two hundred years ago:

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To attempt … to take the disposal out of their hands, at the period of their
decease, would be an abortive and pernicious project … If we prevented them
from bestowing it in the open and explicit mode of bequest, we could not
prevent them from transferring it before the close of their lives, and we should
open a door to vexatious and perpetual litigation.201

A testator minded to ensure that his or her property does not end up under the control
of a beneficiary of a particular religious persuasion can, of course, simply make an
inter vivos gift to someone else, without any fear of future challenge.202

We would argue, however, that voiding testamentary conditions in restraint of
religion would serve as a useful preliminary step toward the necessary transformation
of minds. Commenting some fifty years ago on the decision in Noble203 that the law
could not force a change in societal attitudes by striking out a discriminatory covenant
on a contract for the sale of land, David Smout remarked:

[It] is readily conceded that one cannot legislate tolerance, but, with respect,
surely there is nothing worthless in legislating against certain intolerant
practices. … The courts did not wait for education to convince the gamblers of
the moral impropriety of gambling, but meanwhile held the wagering contract
unenforceable. There would seem no reason why the courts should wait for the
intolerant to become tolerant before holding the discrimination covenant to be
also unenforceable.204

The same arguments apply to testamentary conditions in restraint of religion when
judged against the rigorous standards of modern society. It has been said that
[m]aking a will is an exercise of power without responsibility.205 Yet the freedom
accorded to a property owner in respect of testamentary dispositions has always been
circumscribed by the imposition of certain obligations, integral to which is a moral
responsibility. The classic enunciation of this principle remains the judgment of Chief
Justice Cockburn in the context of the threshold of the mental capacity required for a
sound disposing mind in the nineteenth-century case of Banks v. Goodfellow:

201 William Godwin, Enquiry concerning Political Justice (London: n.p., 1793), cited in Adam J.
Hirsch and William K.S. Wang, A Qualitative Theory of the Dead Hand (1992) 68 Ind. L.J. 1 at 11.
202 A more imaginative method employed by one testator in Northern Ireland and that has come to
the attention of the authors was to leave his property to one son for life, but to the other four in
remainder. In the course of the ensuing family dispute, it came to light that the testators motivation in
ensuring that the first son did not have a capital interest to pass on was that he had married a wife of
the Catholic faith. Acting purely out of spite, the first son sold the land as was his right as life tenant
under the relevant legislation (Settled Land Act, 1882 (U.K.), 45 & 46 Vict., c. 38, s. 3), thus
preventing his brothers from inheriting it on his death. The four brothers were confined to the
proceeds of sale.

203 Supra note 121.
204 Smout, supra note 22 at 872.
205 M. Meston, The Power of the Will [1982-1983] Juridical Rev. 172 at 173.

552

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

[Vol. 50

The law of every civilised people concedes to the owner of property the
right of determining by his last will … to whom the effects which he leaves
behind him shall pass. Yet it is clear that, though the law leaves to the owner of
property absolute freedom in this ultimate disposal of that of which he is thus
enabled to dispose, a moral responsibility of no ordinary importance attaches to
the exercise of the right thus given.206

Finally, it should be remembered that while the discussion here has been confined
to one illustration of undesirable posthumous control, it forms part of a much broader
debate about how the law of succession should most appropriately balance the
potentially conflicting interests that may exist between a deceased individual, his or
her family, and society itself. The development and extension of the dependants relief
and family provision jurisdictions in the second half of the last century has seen the
emphasis shift from the individualism that undergirded the law of succession for
generations, to better protection of the interests of the surviving family and
dependants.207 It is submitted that the succession law as exemplified by the conditions
under discussion in this paper is still unjustifiably weighted toward the individualistic
interests of the dead, and it is time that the balance be redressed to better serve the
interests of the living members of wider society. To quote Professor Rheinstein:

In no branch of our law has its individualistic character been more strikingly
exhibited than in that relating to testamentary disposition. … [I]f in an
uncontrolled right of private ownership there lurk many dangers threatening the
welfare of society, much more do such dangers lurk in an uncontrolled power
of testamentary disposition. It is bad enough when the power conferred by the
possession of property is exercised by a living man who is wicked or foolish; it
is worse if it is exercised by the wicked or foolish dead; the living are at least
open to the influence of the world about them; the dead are beyond our
reach.208

206 (1870), L.R. 5 Q.B. 549 at 563.
207 Due to constraints of space, the interplay between these family protection statues and
testamentary conditions has not been discussed in this paper. However, it is worth bearing in mind
that a court may use its powers under this legislation to delete conditions, including those in restraint
of religion. The only direct Commonwealth authority on this issue appears to be Re Gunn, [1912]
N.Z.L.R. 153 (S.C.). For a similar principle, see Re Lawther Estate (1947), 55 Man. R. 142, [1947] 2
D.L.R. 510 (K.B.).

208 Max Rheinstein, The Law of Decedents Estates, 2d ed. (Indianapolis: Bobbs-Merrill, 1954) at

124-25.