Irreconcilable Dispositions

In Kingdom of the Blind by Louise Penny there is significant discussion about wills, a topic with which I deal almost every day at the office.

I had a couple of concerns with process in the book.

It distresses me when authors get basic legal matters wrong. There is reference to holograph wills being valid in Quebec. That is correct. What is incorrect is that witnesses are required. What makes holograph wills unique is that they do not need two independent witnesses.

More important there is discussion over changing a will when the testatrix, the maker of the will, is suffering confusion. The plot has the notary decline to allow the testatrix to change the bequests in a will because of concern over the mental capacity of the testatrix. At the same time he allows the testatrix to change the liquidators. If she lacked capacity to change beneficiaries the testarix equally lacked capacity to change liquidators.

What was most interesting was the exploration of a perverse will made long ago.

There were references in the book to people who have made bizaree wills such as giving a penny to everyone who attends their funeral.

In the book the “Baroness” Bertha Baumgartner has made a fairly simple division of her assets but no one believes she died with enough assets to be giving $5 million to each of her children.

In the book we learn of a bitter rivaly between the Baumgartners and another family, the Kindroths, to whom they are related that extends back to central Europe. At the heart of the family conflict is an inheritance dispute that has lasted 132 years.

There was a will made in Europe late in the 19th Century in which a Baron’s whole estate was given to each of the Baron’s two sons. The will’s terms are impossible as no priority is given to either son. (The Baumgartners and Kindroths are the families descended from the respective sons.) 

Court battles in Austria over the will began in the 19th Century, carried on through the 20th Century and reached resolution in the book almost 20 years into the 21st Century.

Giving the same bequest to two beneficiaries reminds me of Solomon in the Bible trying to decide between two women on who is the mother of a baby.

Curious about what a Canadian court, outside Quebec, would do with such a will myself and my associate, Brandi, did some research. It took us longer than expected as we searched for the same bequests to different people or conditions on bequests or double bequests. 

Eventually I found the answer when a case on double legacies led me to irreconciliable dispositions. At least back to the 19th Century the law of England and Canada has been that if there are irreconciliable dispositions the last of the irreconciliable dispositions takes effect. Thus in Penny’s fictional will the twin who is named second to receive the estate would get the estate. Canadian courts will strive to avoid making such a ruling including looking at other clauses in the will or extrinsic evidence but if the dispositions are irreconciliable the beneficiary who is designated last gets the property covered by the disposition. The principle is that the last of the dispositions made by the testator (male) or testatrix (female), the maker of the will, reflects the final intention of the testator and therefore should be upheld. Though not stated in cases and texts the principle would accord with how Anglo - Canadian wills are traditionally started as “the last will and testament of ….”.