Unless otherwise specified in the will, a specific legatee is not required to pay the debts or fulfill the obligations associated with the property they inherit.
For some, writing a will may seem simple, but it can create unexpected, complex, and litigious situations. Thus, grandchildren who inherited their grandmother's vast estate in the Laurentians agree, in a duly published sharing agreement, to each allocate a portion of the property and be subject to a restriction clause on the right to alienate. This clause stipulates that none of them can alienate, transfer, or otherwise dispose, in whole or in part, of their property without first obtaining written authorization from the other owners party to the sharing agreement.
Despite the agreement reached, one of the parties leaves his property to his wife, as a specific bequest, with all its contents. Although the wife offered to sell the property to the co-signatories of the sharing agreement at fair market value ($800,000), the latter ask the Court* to confirm that the wife is bound by the restriction clause on the right to alienate.
The court dismisses the co-signatories' request for the following reasons:
- The clause, as drafted, does not amount to a servitude attached to the property, but rather a personal obligation;
- Under the Civil Code of Québec, a "specific legatee", unlike a universal legatee, inherits all rights related to the property but is not obligated, unless otherwise specified in the will, to the obligations attached to it; and
- Enforcing this clause in case of death would restrict the freedom to test, which is contrary to public policy.
Therefore, it is important to remember that a specific legatee is not obligated to pay debts or fulfill obligations related to the inherited property, unless specified in the will and subject to the estate having sufficient funds to pay the debts. Considering the Civil Code of Québec, it is sometimes advantageous to be a specific legatee rather than a universal legatee because, for a rare occasion, you will have more rights than obligations.
*CA 500-09-013565-031, 2004-11-09
