Testamentary Conditions in Restraint of Religion in the Twenty-First Century: An Anglo-Canadian Perspective‪.‬

The Canadian Charter of Rights and Freedoms and the United Kingdom's Human Rights Act 1998 generate interesting questions concerning their application in the private sphere. In this paper, the authors explore how the norms embodied in these instruments affect testamentary conditions in restraint of religion, which create conflict between a will maker's testamentary freedom and the beneficiary's freedom of religion. This tension is particularly relevant in Northern Ireland, where there has been a history of such conditions. The authors review jurisprudence of English, Irish, and Canadian courts to assess the treatment of testamentary conditions in restraint of religion to date, and to project trends for the future. The common law has traditionally defended testamentary freedom, but the adoption of human rights legislation to protect equality and freedom of religion suggests the position is shifting.