Wills and public policy – Can an alleged racially-motivated bequest stand?

By Doug Carroll | May 26 2016 07:00AM
At issue

Courts are loath to interfere with the final wishes expressed in a person’s duly executed Will, except in the most egregious circumstances.

One time when it can occur is when a Will includes a provision that offends public policy, such as a bequest that has a racist element. For example, a bequest may be impugned if it is contingent on a beneficiary entering or ending a relationship based on racial criteria.

But can a bequest be assailed on the basis that it is racist-motivated, but where the Will says nothing to that effect on its face?

Tataryn v. Tataryn Estate (SCC), [1994] 2 S.C.R. 807

The Supreme Court of Canada instructs courts to be cautious in dealing with testamentary freedom: “In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him.”

Against this backdrop, the SCC upheld the British Columbia legislation in issue, which constrained a testator’s testamentary freedom by requiring first that adequate provision be made for a surviving spouse and children.

Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 74 O.R. (2d) 481

This is not a case of testamentary capacity, but sheds light on the interpretation of discriminatory provisions in a trust.

Canada Trust was trustee over a public charitable trust that had been settled in 1923 to provide student scholarships. The trust had overt discriminatory conditions, including that it was only available to white, Protestant, British subjects, and that no more than 25% of annual funds could go to female students.

The court ruled that the explicit discriminatory provisions be deleted, but that otherwise the trust could continue.

McCorkill v. McCorkill Estate, 2014 NBQB 148, aff’d 2015 NBCA 50

The deceased named as beneficiary of his estate the National Alliance, an anti-semitic white supremacist group in the United States. The evidence showed that the purpose and activities of the National Alliance – notably the dissemination of hate propaganda – were illegal under the laws of Canada and New Brunswick. 

While there was nothing in the wording of the Will that was against public policy, the bequest was voided because“the beneficiary’s raison d’être is contrary to public policy.”

Spence v. BMO Trust Company, 2016 ONCA 196

The deceased intentionally left his adult daughter VS out of his Will, stating briefly in it that “she has had no communication with me for several years and has shown no interest in me as her father.”

VS alleged she was excluded for racist reasons. In addition to her own evidence, a long-time family friend swore that the deceased had told her on several occasions that he disinherited VS and her son because the son’s father was white. The deceased was a black man.

The initial ruling went in favour of VS.

In overturning the application judge, the Ontario Court of Appeal found that:

  • Unlike Tataryn, the deceased had no statutory duty to VS under Ontario law,
  • Unlike Canada Trust, the Will had no provisions that offended public policy, and
  • Unlike McCorkill where the executor would effectively be carrying out an illegal act, the named residual beneficiaries were not unworthy heirs so as to warrant disinheriting them.

As to the evidence of VS and the family friend, the court ruled that “extrinsic evidence of a testator’s intentions is not admissible when the testator’s will is clear and unambiguous on its face.” Allowing such an attack “would significantly erode and arguably displace meaningful testamentary freedom.”

Practice points
  1. Testamentary freedom is a central tenet in estate law, allowing testators the expectation that their wishes will generally be upheld.
  2. Express racist provisions in a Will or bequests to organizations with illegal racist purposes will not be allowed to stand.
  3. An allegation of a particular motive behind a testator’s choices will not be allowed to supplant an unambiguous motive expressly stated on the face of a Will.
  4. At time of writing, an application for leave to appeal Spence is pending before the Supreme Court of Canada.