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Wills Not Always Straight Forward
Michael E. Cobb
Michael E. Cobb
Michael E. Cobb
Mike is a founding partner in the firm and brings a wide range of knowledge of the real estate market in southern Ontario.

When preparing wills, we are sometimes asked to put in conditions (ie the beneficiary cannot receive his or her bequest if they have done or have not done something). Here is a recent case in point which went through the courts. A father put a condition in his will that his first son would inherit the family home unless he was convicted of a criminal offence before he turned 21. If he picked up a conviction, the property would not go to him but rather equally to his two brothers.
Unfortunately, the first son was convicted of several criminal offences when he was 17 years old. The executor (the person named in the will to carry out its terms) refused to transfer the home to the son because of the condition. The executor requested a decision from the court as to whether or not the first son should receive the house under the circumstances. The judge decided that the son would get the house on the basis that the conviction was before the son turned 18 years old, the age of majority. The judge went further and also said that the son should not be penalized for his mistake, particularly when the father likely knew about the convictions and could have changed his will. The executor appealed and the appeal court reversed the decision. The higher court decided that at 17 years of age, the son was capable of breaching the criminal conviction provision and had done so. Also, the appeal court said that there was no way of knowing whether or not the father knew of the convictions before his death. Technically, this is known in law as deciding that there was no basis for granting relief from forfeiture (the son was basically trying to get relief from the strict provision of the no conviction clause in the will). The bottom line in this case was that the first son did not get the house and his two brothers were the lucky winners. The condition in this will held up but others may not based on case law. If you wish to include a condition in your will, make sure you discuss it fully with your lawyer.
Mike Cobb is a lawyer at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice

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