Recent cases discuss limits on freedom when making a Will


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Often clients ask, “Can I do whatever I want to do in my Will?”  The answer is always, “It will depend on what you want to do!”  Canada has long had limits on testamentary freedom, and for good reason. 

People cannot use death as an excuse to opt out of their obligations.  If you pay (or are required to pay) spousal support and fail to adequately provide for your former spouse in your Will, then your former spouse can make a claim against your estate.  The same applies for minor or university-age children and other dependants you may be supporting.  Debts must always be paid first, before any remaining assets can be distributed to those you wish to benefit from your estate. Canadian courts have also recognized that there may be “public policy” grounds for not allowing total testamentary freedom.  A good example of this arose a few years ago in the New Brunswick. 

In his Will, Harry McCorkill left the residue of his estate to the National Alliance, an American Neo-Nazi group.  Mr. McCorkill died without any spouse or children, and his parents predeceased him.  His sister, who would have been one of his two beneficiaries if he had died intestate (without a Will), sued, alleging that the gift to the National Alliance was void on the basis that it was “illegal and/or contrary to public policy.” 

The court agreed that the National Alliance’s “publications can only be described as racist, white supremacist and hate-inspired.  They are disgusting, repugnant and revolting.”  The judge noted that under Canada’s Charter of Rights and Freedoms, free speech is specifically subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” and that courts have previously intervened to reject discriminatory gifts in Wills.  As the National Alliance’s goals were both illegal (under our Criminal Code) and against public policy (as being discriminatory), the judge agreed the gift was invalid.  Mr. McCorkill’s wishes were ignored and his assets were distributed in accordance with the rules of intestacy (benefiting his sister and brother).

Things get much trickier, however, when a Will is not on its face discriminatory.  What if someone wants to cut out one of his or her children because that child is gay, or has converted to another religion, or has married someone from a different race?  This sort of problem was tackled earlier this year by Ontario’s Court of Appeal in the Spence v. BMO Trust Company decision.

Rector Emanuel (Eric) Spence, whose second spouse predeceased him, did not include his child Verolin as a beneficiary.  In fact, his Will expressly stated, “I specifically bequeath nothing to my daughter [Verolin], as she has had no communication with me for several years and has shown no interest in me as her father.” 

However, Verolin submitted that she and her father had a very good relationship up until 2002, when she advised him that she was pregnant.  As she put it:

In about September 2002, my relationship with my father came crashing down. That is the time when I told my father that I was pregnant. When he found out that the father of my child to be was white, my father told me that he was ashamed of me. From that point onwards, my father restricted his communications with me.

My father made it very clear to me that he would not allow a “white man’s child" in his house.

The reason my father severed the relationship with me is because I gave birth to a child fathered by a white man.

The trial judge considered this and other “extrinsic” evidence (evidence other than the Will itself) and ruled that Mr. Spence’s Will was invalid because his “motive for disinheriting Verolin was based ‘on a clearly stated racist principle’ that violated public policy as well as ‘human sensibilities.’”  Similar to McCorkill Estate, this had the effect of treating Mr. Spence as if he had died intestate.  Verolin became a beneficiary and Mr. Spence’s grandchildren by his other daughter Donna were excluded, which clearly went against Mr. Spence’s stated wishes.

The Ontario Court of Appeal overturned the trial judge’s decision.  It found that because the language in Mr. Spence’s Will was unambiguous – he clearly wanted to exclude Verolin – the trial judge should not have considered extrinsic evidence to look into Mr. Spence’s motives.  Judges should only look at extrinsic evidence if the language in the Will is ambiguous and the testator’s true intentions must be determined.

The Court of Appeal felt Mr. McCorkill’s situation was different from Mr. Spence’s.  While Mr. McCorkill’s included an obviously offensive (and discriminatory) beneficiary, Mr. Spence’s Will was silent and not obviously discriminatory.  Since Mr. Spence’s stated reason for excluding Verolin was not overtly racist, it wasn’t “offensive” enough to overturn.  Even though she was unsuccessful, it is worth noting at least part of Verolin’s legal fees (about $25,000.00) was covered out of her father’s estate.

Comparing McCorkill Estate with Spence, one cannot help but draw that conclusion that if someone is obviously discriminatory in his or her Will (e.g. “Nothing to my son because he is gay”), there is a good chance his or her Will may be successfully challenged on the “public policy” basis, but if someone is not obviously discriminatory in his or her Will (e.g. “Nothing to my son because we haven’t spoken in ten years”), then the Will may be more likely to survive a challenge.  Thus, if you don’t elaborate a discriminatory reason, discrimination could still occur!

McCorkill Estate is a New Brunswick decision, so it is not (presently) binding on people in Ontario.  However, both McCorkill Estate and Spence may still go before the Supreme Court of Canada, whose decisions are binding upon all Canadians. 

We are currently waiting to hear if the Supreme Court will hear these appeals (and, of course, if they do, what they decide).  Whatever the final results, clients should remember that Wills can be challenged; however, the extent to which courts may intervene to “fix” these types of problematic Wills could be decided soon.