Discriminatory Wills and Disinheritance

August 22, 2016 Ian Hull Estate & Trust, Estate Planning, In the News, News & Events, Trustees, Wills Tags: , , , , 0 Comments

How far can one’s discriminatory beliefs endure in regard to estate planning?

We previously blogged about the Ontario case of Spence v BMO Trust Company (2016 ONCA 196 [CanLii]), where a daughter was disinherited by her father due to her relationship with a white person, what she argued was a “racist principle”. The will had a condition that disqualified Spence from the inheritance because of her relationship. The will was ultimately upheld, and she was disinherited, with her leave to appeal denied by the Supreme Court of Canada. Following this case, it remains unclear whether the court is willing to uphold discriminatory wills or bequests as a whole.

A recent case in New York follows in Spence’s footsteps. A New Jersey woman’s leave to appeal was denied after she argued she was disinherited by her father for falling in love with a Jewish man. She states the will, created in 1987, contained defamatory statements about her behaviour that were put in the will in order to justify her disinheritance.wVlfnlTbRtK8eGvbnBZI_VolkanOlmez_005

A Canadian case that ruled the opposite way and managed to strike down a bequest was McCorkill v Streed (2013 NBQB 249 [Canlii]). In this case, a testator left the remainder of his estate (around one million dollars) to a Neo-Nazi organization. This inheritance was declared void  for being contrary to public policy.

While the law in Canada has ruled two different ways, there ought to be consistency and change in acknowledging discriminatory bequests. As I previously stated in an article for the Law Times in June, the Spence decision, and now the added New York decision is troubling. The courts should have guidance when these sorts of discriminatory issues arise based on the facts of the case. Discriminatory wills or bequests should be seen as contrary to public policy and therefore disallowed. It should be the job of the legislature, and not the courts, to create a statutory mechanism that will provide a safeguard for heirs who are disinherited from estates that they otherwise would be entitled to. This issue becomes a balancing act between public policy and testamentary freedom. In drafting wills for those who may want to add a discriminatory condition, there is currently no determinative precedent as to what the courts will uphold due to the somewhat conflicting results from Spence and McCorkill.

Legislation ought to be developed to promote equality in estate planning to ensure that potentially discriminatory gifts will not be upheld in a court. While there is no clear legal stance, practicing lawyers who draft wills should now inform their clients of the potential that certain gifts may be barred due to being against public policy.

Thanks for reading.

Ian M. Hull

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