ABSTRACT
Quebec is a leader when it comes to avoiding testamentary conditions that perpetuate discrimination. It has held this a position for over a century, with its public order decisions long pre-dating famous common law cases hailed as firsts in this area of the law. Some might balk at the idea of citing Quebec jurisprudence in common law cases because the law applied in Quebec to void capricious conditions is that of public order rather than the common law doctrine of public policy. Unlike public policy, which is an unlegislated doctrine of the common law, public order is codified in Quebec as part of the province’s system of civil law. Quebec’s Charter of Rights and Freedoms also applies, in at least one way, directly to wills. However, while these legal realities may have contributed to a contemporary and robust application of public order to Quebec wills, they by no means prevent the jurisprudence of Quebec from informing the common law approach to public policy and capricious wills. This article begins with an overview of the law of public policy that governs capricious wills in the rest of Canada (‘ROC’). It then it explains why the variables of the civil law and Quebec’s Charter of Rights and Freedoms should not be seen as barriers to the application of Quebec jurisprudence to common law decisions. In doing so, it reviews some key Quebec decisions to demonstrate what jurists in the ROC can learn from them.
Thomson, Jane, Public Order and Capricious Wills in Quebec: Some Important Lessons for the Rest of Canada (May 1, 2025), (2025) Vol 7 Supreme Court Law Review (3rd) 23.
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