Testamentary Freedom and Public Policy

March 3, 2015 Hull & Hull LLP Ethical Issues, Wills 0 Comments

Testamentary freedom refers to the concept that a person, in making his or her will, has free reign in deciding what to do with his or her property on death.  In general terms, Ontario law does give testators the right to decide how to distribute their property freely.  There are some limits to this principle, however.

When a person dies leaving a married spouse, the Family Law Act gives the surviving spouse the right to elect to take under the will or to receive an equalization of net family property (to receive a similar share of the decedent spouse’s property as he or she might have been entitled to had the couple divorced or separated immediately before the death).  This is intended to protect surviving spouses from being deprived of their entitlements to property accumulated during the course of the marriage.  While testators are free to make wills leaving nothing to their spouses, the surviving spouse’s right to a Family Law Act election means that the spouse with less net family property can elect to take a share of the estate.

Another way that a spouse’s rights are protected is through a claim for dependant’s support under Part V of the Succession Law Reform Act.  Spouses (married or common law), parents or grandparents, siblings, and children or grandchildren to whom the deceased is providing support or to whom the deceased is under an obligation to provide support at the time of death, may make a claim against the assets of the deceased for their support.  If a testator fails to plan for those depending on him or her, the Court can order that the deceased’s assets should be distributed in a way that provides for their support.

Within the last several months, there have been a few recent Canadian cases addressing the applicability of public policy considerations in the law of wills.  These cases raise questions regarding the extent to which a person is free to make gifts under a will that offend public policy.  In one case, McCorkill v. Streed, a gift to a neo-Nazi hate group in the United States was invalidated on the ground that the group’s very raison d’être was contrary to public policy in Canada.  In another, Spence v. BMO Trust Company, the Court invalidated a will on the basis of extrinsic evidence that suggested that the testator may have disinherited his daughter for racist reasons, despite there being no ambiguity on the face of the will.  Both of these cases represent bold steps by the Courts to extend the use of public policy to affect testamentary dispositions in ways that had not been done previously in Canada.  Prior Canadian public policy cases had largely dealt with conditional gifts where it was the condition that offended public policy and not the identity of the recipient of the gift or the reason behind the gift.

Some public policy cases make for sensational stories.  In the historic Re Millar case, the testator’s gift to “the mother who has since my death given birth in Toronto to the greatest number of children” was challenged unsuccessfully.  In another case, Re Wishart Estate, a testator directed in his will that his executors have his horses shot by the Royal Canadian Mounted Police and then buried.  The case even quotes a letter to the Judge from a child named Jennifer who wrote, “Dear Judge, Please don’t let anyone kill the horses.  I love horses but my dad won’t let me have one.  I will be sad if they get killed.” Don’t worry – the Court intervened to save the horses on the basis of public policy.

All of this raises doubt about the future of the concept of testamentary freedom.  It is expected that we will receive some further guidance from the Courts in the coming months on the subject of public policy and its applicability to wills.  Some clarification would be helpful.  The traditional view that a person should be free to do whatever he or she wishes by way of a will seems to be changing.  However, if this results in the recognition that there is little place for racist or discriminatory thinking in making testamentary dispositions, then this change may be a welcome one.

Josh Eisen

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