Contract to make a will in a certain fashion if breached does not affect validity of the will

Today’s decision in Frye v. Frye Estate, 2008 ONCA 606 makes clear the estate law point that the power to dispose of property in a will is not constrained by contract. Thus, a contract to make a will in a certain fashion, if breached, does not affect the will’s validity – at most it can lead to a claim for breach of contract.

This point is worth noting, especially in the family law context.

The Court writes:

[19] First, on a conceptual level, contractual obligations do not constrain a person’s ability to bequeath property by means of a will. For example, a contractual obligation to make or to refrain from revoking a will gives rise to an action for breach of contract and does not affect the validity of the will itself: see A.H. Oosterhoff, Oosterhoff on Wills and Succession, 6th ed. (Toronto: Thomson Carswell, 2007) at 126–27. The trial judge concluded that “Cameron Frye was bound by the provisions of the Shareholders’ Agreement as amended and had no right to transfer by his Will shares in the corporation to his sister Cheryl.” Cameron Frye may have been bound by the provisions of the Shareholders’ Agreement, but his right to bequeath his shares was entirely another matter.