Testamentary conditions in restraint of religion in the twenty-first century: an Anglo-Canadian perspective.

• Author: Grattan, Sheena

The Canadian Charter of Rights and Freedoms and the United Kingdom's Human Rights Act 1998 generate interesting questions concerning 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 maker's testamentary freedom and the beneficiary's 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 Charte canadienne des droits et libertes et le Human Rights Act 1998 du Royaume-Uni posent des problemes interessants quant a leur application dans le domaine prive. Dans cet article, les auteures examinent comment les normes contenues dans ces instruments affectent les conditions testamentaires imposant des contraintes religieuses, puisqu'elles creent un conflit entre la liberte testamentaire de celui qui redige ses dernieres volontes et la liberte de religion du beneficiaire. Cette tension est particulierement palpable en Irlande du Nord, ou de telles conditions ont existe de longue date.

Les auteures passent en revue la jurisprudence des tribunaux anglais, irlandais et canadiens afin de determiner le traitement a ce jour des conditions testamentaires imposant des contraintes religieuses et afin d'en tracer la probable evolution future. La common law a traditionnellement veille a preserver la liberte testamentaire, mais l'adoption de lois relatives aux droits humains et protegeant l'egalite et la liberte de religion suggere un changement de position.

La vecu jurisprudentiel de la Charte fournit des indices quant a l'interpretation future du Human Rights Act. L'adoption de la Charte a eu un impact sur la conception de politique publique au Canada et les tribunaux canadiens ont procede a un nouvel examen de leurs positions traditionnelles. Toutefois, la teneur des jugements outre-Atlantique demeure nettement favorable h la liberte testamentaire, et il est encore incertain si les tribunaux seront ouverts au changement.

 Introduction

1. Testamentary Conditions in Restraint of Religion: The Current Legal Landscape in England and Northern Ireland A. Repugnancy

   2. Public Policy C. Uncertainty II. Canadian Perspectives en 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

      "[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 and Settlements of Property. (2)

   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 testators (3) 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 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.

   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.

   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...