The Rule against in Terrorem Conditions: What Is It - Where Did It Come from - Do We Really Need It
![handle is hein.journals/espjrl25 and id is 99 raw text is: THE RULE AGAINST IN TERROREM CONDITIONS:
WHAT IS IT? WHERE DID IT COME FROM?
DO WE REALLY NEED IT?
Peter G. Lawson*
This branch of the law is one with which it is not very satisfactory to deal,
and I cannot say that I think the mode in which it has been dealt with is
very easy to weld into one consistent whole...
Vaughan Williams L.J., In Re Whiting's Settlement, [1905] 1 Ch. 96 at
p. 115 (C.A.).
TABLE OF CONTENTS
1. The Birth of a Legal Fiction ....................................................................... 73
2. The Characteristics of the English Rule ..................................................... 77
3. Contrasting Developments Outside England ............................................. 79
4. The Approach of the Canadian Courts ........................................................ 84
5. The Gift Over Requirement ....................................................................... 89
6. The Value of the Rule Considered .............................................................. 92
7. Conclusion .................................................................................................. 94
Testators are free to impose conditions, no matter how idiosyn-
cratic, on gifts given in their wills. The outer limits of acceptability
have been established by a series of judicially defined principles,
including uncertainty, repugnancy, and public policy. Amongst these
limiting principles, probably the most problematic, even controversial,
is the rule against in terrorem clauses. Put simply, this principle
prohibits the enforcement of a forfeiture clause which is unsupported
by a gift over.
Traditionally, in terrorem language has been utilized by testators
to enforce two types of conditions: conditions in partial restraint of
marriage -typically clauses requiring that the beneficiary not marry
without consent-and conditions forbidding the beneficiary from
contesting the will. The effect of the rule against in terrorem clauses](ViewImageLocal?handle=hein.journals/espjrl25&div=10&collection=journals&method=preview&ext=.png&size=3)
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The Rule against in Terrorem Conditions: What Is It - Where Did It Come from - Do We Really Need It
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