Competing February 2016 rulings by Ontario courts have left us with real questions as to when a discriminatory Last Will and Testament will be upheld in this province.
These cases are the latest in a very interesting history of court cases dealing with Last Wills that have tried to create racially discriminatory gifts, meddle in the marital affairs of others, support unsavoury political causes, and troll public institutions.
For over a century, Canadian and British courts have responded by striking out portions of last wills that violate an established code of law like the Charter of Rights and Freedoms, or a well established legal principle.
A relatively small number of cases have emerged in that time, and that's probably just as well. Wills that are struck down in this manner usually involve testators with ugly views about humanity, their own family, or both.
There have been a number of rulings over the years concentrated in two areas in particular:
- Wills containing gifts and bequests that violate the freedom of race, religion, gender, sexual orientation, etc.
- Wills that try to meddle with a person's freedom to marry whom they desire.
Today, the right to marry whom one chooses is recognized as a protected Charter right that Last Wills cannot try to restrain.
But even before the Charter era, it was considered a civil offence to interfere with the married relations of another person (for instance, by offering a financial incentive to leave a spouse- see Re McBride, 1980, Ontario Superior Court) and the courts were prepared to strike out last wills that meddled in such a manner.
The Priebe Estate
In February 2016, Justice A.K. Mitchel of the Ontario Superior Court made a ruling in the Estate of Victor Hugh Priebe (Royal Trust v University of Western Ontario et al).
Victor Priebe's Last Will is a pretty typical example of a violation of the first charter principle above. Priebe, a physician, provided for the creation of a scholarship for students at Western, but available only to young men who were:
"Caucasian (white) male, single, heterosexual students in scientific studies" with special consideration for students who took on "hard manual work in their selection of summer employment";Or, a young woman who was
"hard-working, single, Caucasian white girl [...] not a feminist or lesbian".
The court's intervention in this case is perhaps easy to understand, because the Last Will was ordering the Trustees of the Priebe Estate to create a scholarship fund for the broader Canadian public that was set up on unabashedly prejudicial terms - to deliberately violate the Charter. Instead, the estate was directed to make the charitable donation to the university, but without any of unseemly restrictions on the scholarships.
The Priebe ruling is consistent with previous rulings in which the Court has intervened when a Will appeared to violate the Charter:
In Ontario Human Rights Commission v Canada Trust Co. (1990, Ontario Court of Appeal) Ontario the Court struck out provisions from a Trust created by Estate of Reuben Leonard, that since 1923 or thereabouts had provided scholarships to nobody but White, Protestant, loyal subjects of the British Empire. The Court acknowledged that the public interest had evolved over the last 65 years, and however the scholarships had been administered in the past, they clearly offended the Charter of Rights and Freedoms in the year 1990. The Court ordered that the Trustees continue to award the "Leonard Scholarships", but without any regard to race, religion or national identity.
This evolution though, was still a process. The Leonard decision, for instance, noted that the court could not interfere with gifts and bequests to private individuals that were discriminatory, so long as they weren't set up as charitable trusts.
This distinction appeared to have dissolved over time. The decision in Murley Estate (1995 Nfld Supreme Court), for example, struck out a provision in a Will that left a bequest to a beneficiary on the condition that he remain a member of the Catholic, Anglican or United Church.
A February 2016 ruling of Ontario's Court of Appeal appears to have changed this, at least with respect to private testamentary gifts that do not involve testamentary public trusts for scholarship, community or similar purposes.
The Spence Estate
Having seen examples of when Courts have struck out a portion of a Last Will on discriminatory grounds, it's equally informative to note when they have not.
A dramatic example of an apparently discriminatory Will being upheld is found in the Ontario Court of Appeal's surprising February 2016 ruling in Spence v BMO Trust.
The Last Will of Rector Emanuel Spence contained this provision:
I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.Verolin Spence brought a Court application urging the Court to look deeper into the Spence family affairs. A lifelong friend of Rector Spence testified that his true reason for excluding Verolin from his Estate was that the father of her son was white. Rector had raged that he had no further use for Verolin and her “bastard white son” and that he intended to exclude her from his will because of her personal choice.
To the extent the Will excluded Verolin, it was invalidated at the Application's hearing. On appeal, however, the Application Judge's ruling was overturned and the will was upheld.
The issues before the Court of Appeal were framed as follows:
 Is it open to the courts to scrutinize an unambiguous and unequivocal residual bequest in a will, with no discriminatory conditions or stipulations, if a disappointed beneficiary or other third party claims that the bequest offends public policy? Is third-party extrinsic evidence of the testator’s alleged discriminatory motive for making the bequest admissible on an application to set aside the will on public policy grounds?
73] This question lies at the very heart of Eric’s exercise of his testamentary freedom. It must be remembered that the bequest at issue is of a private, rather than a public or quasi-public, nature. Recall Tarnopolsky J.A.’s caution in Canada Trust, at p. 515, that it was the “public nature of charitable trusts which attracts the requirement that they conform to the public policy against discrimination”. Here, assuming that Eric’s testamentary bequest had been facially repugnant in the sense that it disinherited Verolin for expressly stated discriminatory reasons, the bequest would nonetheless be valid as reflecting a testator’s intentional, private disposition of his property – the core aspect of testamentary freedom.
 In these hypothetical circumstances, neither Ontario’s Human Rights Code, R.S.O. 1990, c. H.19 nor the Charter of Rightsand Freedoms would apply to justify court interference with the testator’s intentions. The Human Rights Code, of course, ensures that every person has a right to equal treatment with respect to services, goods and facilities without discrimination based on race and other enumerated grounds. The Charter pertains to state action. Neither reaches testamentary dispositions of a private nature.
 Absent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects a testator’s right to unconditionally dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds. To conclude otherwise would undermine the vitality of testamentary freedom and run contrary to established judicial restraint in setting aside private testamentary gifts on public policy grounds...
 It need hardly be said that public policy in Canada precludes discrimination on the basis of race and other discriminatory characteristics. The public policy against discrimination is reflected in the Charter and the human rights legislation of every province in Canada, including Ontario’s Human Rights Code.
 But the desirability of affirming the public policy against discrimination does not lead to the conclusion that third-party extrinsic evidence of a testator’s alleged discriminatory motive is admissible to challenge the validity of a will where, as here, the testator’s residual bequest to a private beneficiary is absolute, unequivocal and unambiguous. Quite the opposite. If, as Rondelholds, extrinsic evidence is not admissible to establish what a testator intended, still less should it be admissible to question whythe testator made a particular bequest...
 As I have indicated in these reasons, the scope for judicial interference with a testator’s private testamentary dispositions is limited. So, too, is the reach of the public policy doctrine in estates cases. And for good reason. The court’s power to interfere with a testator’s testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator’s testamentary choices as distasteful, offensive, vengeful or small-minded. As the court observed in Thorsnes v. Ortigoza, 2003 MBQB 127 (CanLII), 174 Man. R. (2d) 274, at para. 14, “a person has the right, subject to fulfilling specific legal obligations to dependants, to dispose of his or her estate in an absurd or capricious manner, whatever others may think of the fairness or reasonableness of the dispositions”.
Most notoriously, Millar set aside a generous gift to be given to the mother or mothers who gave birth to the most children in a ten year period after his death. The disposition of his Estate was challenged all the way to the Supreme Court. The Chief Justice ruled that the intention behind this bequest might be unseemly, but it didn't violate any specific law or established line of legal reasoning, and therefore Courts were not free to strike it out.
Until the recent Spence appeal ruling, it might have been difficult to succeed in an argument that a dispute with a child, reflected in a disinheritance over the gender, race or religion of a child's partner or children would be addressed by Ontario's courts as simply a private matter between family.
Spence, however, has apparently elevated the principle of testamentary freedom beyond any objections over discrimination, so long as a testamentary bequest is solely private in character and no public or community trust is implicated.
It is now increasingly unlikely that Ontario's court will be willing to look more deeply into family disputes and strike out or amend a Last Wills that purported to exclude a beneficiaries on grounds that the public at large would consider discriminatory, based on the Canada's Charter values.
This anomaly can only be resolved by legislative change.