In Terrorem in Time for Halloween
Few legal doctrines sound quite as ominous as in terrorem — Latin for “in fear” — a fitting phrase for the season and an apt reminder that even in estate planning, some threats prove more spectral than real.
Background
In terrorem, is a phrase that fits right in with the spirit of Halloween. These eerie clauses disguise themselves as a conditional gift, but underneath the veiled threat of disinheritance is a threat without consequence”.[1]
Yet, just like a curse that often backfires, in terrorem clauses are generally ruled void for being contrary to public policy based on the in terrorem doctrine.[2]
From English law, the in terrorem doctrine holds that two types of testamentary conditions are limited by the in terrorem rule: (1) conditions in a partial restraint of marriage, such as requiring consent; and (2) conditions forbidding a beneficiary from contesting the will.[3]
To determine whether a purported condition qualifies as in terrorem, the Canadian Courts have conjured up a three-part assessment. All of which must be met before the doctrine in terrorem is applicable:
- The legacy must be of personal property or blended personal and real property.
- The condition must be either a restraint on marriage or one which forbids the donee to dispute the will.
- The “threat” must be “idle”; that is, the condition must be imposed solely to prevent the donee from undertaking that which the condition forbids. Therefore, a provision which provides only for a bare forfeiture of the gift on breach of the condition is bad.[4]
Peter Lawson, in The Rule Against ‘In Terrorem’ Conditions: What is it? Where Did it Come From? Do we Really Need it? citied by the Alberta Court of Appeal in Mawhinney, resurrects the discussion with an insightful analysis of the modern trend in Canadian in terrorem jurisprudence:
The more recent Canadian in terrorem case law has focused on the application of the in terrorem rule to no-contest clauses. These cases indicate that the scope of this branch of the rule is effectively limited to conditions which prohibit common law proceedings. Conditions which purport to prohibit proceedings pursuant to dependents relief legislation, as well as conditions which are judged to constitute attempts to exclude the jurisdiction of the courts, will be held to be void pursuant to the principle of public policy.[5]
Thus, as concluded by the Alberta Court of Appeal, even a validly crafted no contest clause (i.e. one that accounts for a gift over provision) may not oust statutory benefits or deprive the court of its jurisdiction to deal with requests for assistance in interpreting the will, which do not impugn the will.[6]
A Brief Note on Mawhinney v Scobie
Interestingly, in Mawhinney, the trial level and appellate courts considered whether the Surrogate Court Rules, and application for proof in solemn form, ought to be considered within the scope of the clause’s exception. The no- contest clause’s exception was a sort-of carve out that would allow beneficiaries to access statutory benefits so as to not be void for public policy. The provision held:
- If any beneficiary of this my Will challenges the validity of this my Will or any Codicil hereto or commences litigation in connection with any provision of my Will or any Codicil hereto, other than for:
(a) Any necessary judicial interpretation or for the assistance of the court in the course of administration of my estate; or
(b) Seeking to enforce or obtain any rights or benefits conferred by the laws of the Province of Alberta;
The trial judge found that the Surrogate Court Rules lay safely within the “laws of the Province of Alberta,”; however, the Court of Appeal, in a split judgement, that would even have the spirits arguing, quashed the lower court’s decision. The Supreme Court refused leave, leaving the issue suspended in the twilight with a Superior Court and Appellate judge on one side and two Appellate Justices on the other.
Final Remarks
While in terrorem clauses may carry an ominous ring, their name alone evoking fear and forewarning, their real power is often more illusion than substance. The courts have consistently reaffirmed that public policy, not private threat, governs the reach of testamentary conditions. In practice, these clauses serve less as instruments of control from beyond the grave and more as reminders of the careful balance between testamentary freedom and judicial oversight.
—
[1] Mawhinney v Scobie, 2019 ABCA 76 (CanLII) at para 22. (“Mawhinney”)
[2] Kathleen Budai v. Susan Milton, 2014 ONSC 5530 (CanLII) at para 5.
[3] Mawhinney, at para 22.
[4] Kent v. McKay, 1982 CanLII 788 (BC SC), at para 11; Kathleen Budai v. Susan Milton, 2014 ONSC 5530 (CanLII) at para 6.
[5] Peter G Lawson, “The Rule Against ‘In Terrorem‘ Conditions: What is it? Where Did it Come From? Do we Really Need it?” (2005) 25 Estates, Trusts & Pensions Journal 71 at 71, at page 86; cited by Mawhinney, at para 26.
[6] Mawhinney, at para 27.
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Written by: Grant Swedak
Posted on: October 31, 2025
Categories: Commentary
Few legal doctrines sound quite as ominous as in terrorem — Latin for “in fear” — a fitting phrase for the season and an apt reminder that even in estate planning, some threats prove more spectral than real.
Background
In terrorem, is a phrase that fits right in with the spirit of Halloween. These eerie clauses disguise themselves as a conditional gift, but underneath the veiled threat of disinheritance is a threat without consequence”.[1]
Yet, just like a curse that often backfires, in terrorem clauses are generally ruled void for being contrary to public policy based on the in terrorem doctrine.[2]
From English law, the in terrorem doctrine holds that two types of testamentary conditions are limited by the in terrorem rule: (1) conditions in a partial restraint of marriage, such as requiring consent; and (2) conditions forbidding a beneficiary from contesting the will.[3]
To determine whether a purported condition qualifies as in terrorem, the Canadian Courts have conjured up a three-part assessment. All of which must be met before the doctrine in terrorem is applicable:
Peter Lawson, in The Rule Against ‘In Terrorem’ Conditions: What is it? Where Did it Come From? Do we Really Need it? citied by the Alberta Court of Appeal in Mawhinney, resurrects the discussion with an insightful analysis of the modern trend in Canadian in terrorem jurisprudence:
The more recent Canadian in terrorem case law has focused on the application of the in terrorem rule to no-contest clauses. These cases indicate that the scope of this branch of the rule is effectively limited to conditions which prohibit common law proceedings. Conditions which purport to prohibit proceedings pursuant to dependents relief legislation, as well as conditions which are judged to constitute attempts to exclude the jurisdiction of the courts, will be held to be void pursuant to the principle of public policy.[5]
Thus, as concluded by the Alberta Court of Appeal, even a validly crafted no contest clause (i.e. one that accounts for a gift over provision) may not oust statutory benefits or deprive the court of its jurisdiction to deal with requests for assistance in interpreting the will, which do not impugn the will.[6]
A Brief Note on Mawhinney v Scobie
Interestingly, in Mawhinney, the trial level and appellate courts considered whether the Surrogate Court Rules, and application for proof in solemn form, ought to be considered within the scope of the clause’s exception. The no- contest clause’s exception was a sort-of carve out that would allow beneficiaries to access statutory benefits so as to not be void for public policy. The provision held:
(a) Any necessary judicial interpretation or for the assistance of the court in the course of administration of my estate; or
(b) Seeking to enforce or obtain any rights or benefits conferred by the laws of the Province of Alberta;
The trial judge found that the Surrogate Court Rules lay safely within the “laws of the Province of Alberta,”; however, the Court of Appeal, in a split judgement, that would even have the spirits arguing, quashed the lower court’s decision. The Supreme Court refused leave, leaving the issue suspended in the twilight with a Superior Court and Appellate judge on one side and two Appellate Justices on the other.
Final Remarks
While in terrorem clauses may carry an ominous ring, their name alone evoking fear and forewarning, their real power is often more illusion than substance. The courts have consistently reaffirmed that public policy, not private threat, governs the reach of testamentary conditions. In practice, these clauses serve less as instruments of control from beyond the grave and more as reminders of the careful balance between testamentary freedom and judicial oversight.
—
[1] Mawhinney v Scobie, 2019 ABCA 76 (CanLII) at para 22. (“Mawhinney”)
[2] Kathleen Budai v. Susan Milton, 2014 ONSC 5530 (CanLII) at para 5.
[3] Mawhinney, at para 22.
[4] Kent v. McKay, 1982 CanLII 788 (BC SC), at para 11; Kathleen Budai v. Susan Milton, 2014 ONSC 5530 (CanLII) at para 6.
[5] Peter G Lawson, “The Rule Against ‘In Terrorem‘ Conditions: What is it? Where Did it Come From? Do we Really Need it?” (2005) 25 Estates, Trusts & Pensions Journal 71 at 71, at page 86; cited by Mawhinney, at para 26.
[6] Mawhinney, at para 27.
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