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In Ontario, we operate under a policy of “testamentary freedom”. In a nutshell, this means that individuals are allowed to dispose of their property upon their death in whatever manner they want, and no one, not even the children or spouse of the individual, is entitled to receive anything upon the individual’s death. There are, however, some restrictions on this testamentary freedom. One is the requirement under the Succession Law Reform Act to leave adequate financial provision for persons who are financially dependent on the deceased, such as a spouse or minor children.

Another restriction has to do with public policy considerations. In short, where an individual makes a Will that offends societal values, the Will, or part of it, could be set aside. A Will could offend societal values because it is racist, sexist, or requires someone to do something against their beliefs or against the law.

For example, where an individual left a scholarship trust upon his death that required any potential scholarship recipients to be White, Protestant, British subjects, a judge held that this condition of the scholarship offended public policy. As a solution, the judge removed these discriminatory requirements for the scholarship applicants.

The following conditions set by individuals in their Wills have also been found to be against public policy, and have therefore been removed from the Will after the testator’s death:

  • Conditions that require a beneficiary to commit a crime or otherwise break the law
  • Conditions that control a parent-child relationship, such as disinheriting a potential beneficiary under the Will if that beneficiary resides with a particular parent
  • Conditions that control whether or to whom a person can marry
  • Conditions that require a person to continue to maintain a certain religious affiliation.

As well, if a Will contains a provision requiring the executors or trustees to act in a way that is contrary to public policy, that provision may also be struck out by a court. For example, a provision in a Will preventing an executor from selling the deceased’s house to anyone who is not of a certain religion or race is likely to be struck out.

In rare occasions, it may be that an entire gift given under a Will is found to be invalid because of public policy reasons. In McCorkill v McCorkill Estate, the deceased left the residue of his estate to a neo-Nazi organization, whose very purpose was rooted in anti-Sematism, racism and White supremacy. The court found that the gift itself was against public policy because it would be used to fund hate crimes, and therefore struck this part of the deceased’s Will.

What if a Will is written with a discriminatory intent, but does not actually contain a discriminatory provision? The most recent word from the Ontario Court of Appeal, in Spence v BMO Trust Co, is that an individual can make, or refuse to make, gifts in a Will for whatever reason he or she wants – even if those reasons are against public policy – as long as the Will does not require anyone else to do something that is against public policy. This is a difficult distinction to make, and seems to leave some room for interpretation.

NOTE: The unsuccessful parties in both McCorkill (New Brunswick Court of Appeal) and Spence (Ontario Court of Appeal) have filed for leave to appeal to the Supreme Court of Canada, so we may soon get more guidance from Canada’s highest court.

To read more about what you can and cannot do with your Will, take a look at our previous blog post.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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