Testamentary Freedom Can Be Restricted by Contract

Date: Nov 19, 2014
Document Type: Article

It is well settled that a person can, by contract, restrict his or her testamentary freedom. This can be done in several ways.  

A contract may be entered into to leave property under a will in favour of a particular person. The contract can include a provision not to revoke that gift.

A person may also act or fail to act in such a way that, after the person dies the personal representatives of the deceased person are stopped from denying rights in or over estate property asserted by persons claiming as a result of such conduct. 

A person making a will, may also act in such a way that the executor of that person’s estate has to hold part of the property in trust for persons claiming an interest in the estate otherwise than under the will.

Although a will is by its nature revokable, a willmaker may enter into a binding contract not to revoke a will and breach of such a contract will give to the other contracting party a right of action for damages and depending upon the circumstances a possible claim for equitable relief.

A will is revokable until death or the loss of testamentary capacity by the willmaker. The willmaker cannot change his or her will or make a new will after the willmaker loses testamentary capacity which is the cognitive ability to appreciate what a will is and its effect.

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