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In British Columbia, some testators left little for some of their independent adult children, while leaving most of their assets to their other children. In many of those cases, the courts granted the wills variation claims of disgruntled beneficiaries, and while doing so, the courts are required to make the distribution "adequate, just and equitable" under BC law. This can result in a distribution that strongly contradicts the intentions of those testators. A famous example of those cases is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807.

In other provinces, Ontario for example, testamentary freedom is upheld more strongly. Under Ontario law, if a bequest is unambiguous, unequivocal, and unconditional, courts will not scrutinize it to the extent under BC law. In Spence v. BMO Trust Company, 2016 ONCA 196, the judge even says that a testator does not even need to specify a reason for testamentary dispositions, and "the privacy of those reasons is inherent in the principle of testamentary freedom."

If the testators in the BC cases had inserted a choice of law clause specifying that the laws of another province (such as Ontario) would govern, would it have helped to achieve their desired testamentary dispositions?

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A will is not a contract

Choice of law clauses are ineffective in a will: the law that applies is the law that applies. That will generally be some combination of the law where the testator resided at death, the law where the assets are located, and, uncommonly, the law where they died.

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  • The validity of the execution of a will is governed by the law of the place where the will was executed in most cases. For example, if B.C. required two witnesses, but Iowa where the will was executed, required only one witness, it would probably will be validly executed.
    – ohwilleke
    May 18 at 15:28
  • @ohwilleke I was speaking of the law applicable to the distribution of assets.
    – Dale M
    May 18 at 22:43
  • @DaleM Could a will be written as a contract, such as having the beneficiaries provide some consideration (convey something of value to the testator at the time of the contract) in exchange for the testator's assets after the testator's death?
    – Victor
    May 19 at 1:45
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    @Victor sure - but that wouldn’t be a will, it would be a futures contract.
    – Dale M
    May 19 at 2:16
  • @DaleM You're right; that wouldn't be a will. Since choice of law clauses don't work in a will, and attempts to make it work would just make it a contract, that answers my question. I guess that because the law in some places doesn't treat estates very well (disrespecting the wishes of the testator and possibly expensive probate tax), many people would rather distribute their assets through designated beneficiaries, contracts, trusts, and holding companies, which are not wills, leaving little to no assets in the estate.
    – Victor
    Jun 1 at 1:29

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