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Estates & Wills & Trusts

Discriminatory wills worthy of judicial intervention

Although testamentary freedom is the general rule in modern succession law, as a matter of public policy, courts should not condone wills where the testator's motives are racially discriminatory, Toronto estates and trusts lawyers Ian Hull and Suzana Popovic-Montag write in the Fall 2016 Advocates’ Journal.

Commenting on the recent Court of Appeal for Ontario decision in Spence v. BMO Trust Company, Hull, co-founding partner of Hull & Hull LLP, and Popovic-Montag, managing partner of the firm, explain that dependant support and family law claims are two limitations to testamentary freedom, with a third being public policy.

“Racially discriminatory motives obviously impose great social costs that are often worthy of judicial intervention. Consequently, it is arguable that a testamentary instrument should be altered or set aside on the basis of public policy when it is based on an offensive, racially discriminatory principle that impinges on the dignity of human life,” they say.

As Hull and Popovic-Montag write, as it stands in Ontario today, testamentary freedom has been preserved “to the point of allowing a racially discriminatorily motivated will to be upheld; this notwithstanding that the public funds the judicial and administrative process of the verification of a will (i.e., the Proof in Common or Proof in Solemn form).”

In March, the Court of Appeal in Spence v. BMO Trust Company set aside the lower court decision and held that “a court cannot enter into a public policy based review of a private will,” with Lauwers J.A stating that a will is “a quintessentially private act of personal expression.”

The testator in the case, Rector Emanuel Spence, had "explicitly disinherited" his daughter Verolin and her 11-year-old son in his will.

As Hull and Popovic-Montag write: “The basis for Verolin’s disinheritance, the will stated, was because ‘she has had no communication with me for several years and has shown no interest in me as a father.’”

However, the father-daughter relationship had come to a dramatic end years earlier when Verolin was pregnant with her son, by a man of a different race.

The lower court held that the deceased disinherited Verolin because of discriminatory motives and set aside the will on the basis that the deceased’s motives offended public policy.

As the article notes, the subsequent appeal focused on the questions of when is extrinsic evidence admissible and when should a will be set aside because it offends public policy?

On the same day, the Court of Appeal also released the decision in Neuberger v. York, where it dealt with some of the same wills and estates issues as BMO, explain Hull and Popovic-Montag.

“In addressing the policy considerations that underline the jurisdiction and the role of the court, in Neuberger, at paragraph 118 Gillese J.A. noted:

A will, however, is more than a private document. As explained above, a dispute about a will's validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator's true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators whose deaths preclude them from protecting their own interests, to those with a legitimate interest in the estate, and to the public at large.

“The carefully chosen words of Gillese J.A. cannot be ignored. A will is more than a private document, and its impact extends to the public and speaks to society at large. This view of Gillese J.A., in Neuberger v. York, is in direct opposition to the comments of Lauwers J.A. in BMO, where he says a will 'is a quintessentially private act of personal expression.' It is in the context of the expanded view of the court's jurisdiction in Neuberger that the mixed message is so clearly observed,” write Hull and Popovic-Montag.

“If it is accepted that there is indeed a public and expanded role of the court as described in Neuberger, then it is difficult for one to reconcile the BMO decision, from the same level of court and even from one identical panel member, to judicially sanction a clearly racially discriminatorily motivated will.”

In BMO, they explain, the issue was not the testator's intentions, as it was clear what the testator wished: he wanted to, and intended to, disinherit his daughter.

“The issue in BMO was the reason why he did what he did with his estate – namely, his racially discriminatory motives. For this reason, the extrinsic evidence was properly admitted by Gilmore J.”

As Hull and Popovic-Montag explain, for three-quarters of a century, the Supreme Court of Canada “has recognized that testamentary instruments may be altered or set aside on the grounds of public policy,” although courts are aware that public policy can be an “unruly horse.”

“Although courts must exercise caution, they have jurisdiction to invoke public policy, and they do so appropriately when there is clear public opinion and widespread criticism about the matter.”

They add, “racial discrimination is contrary to public policy as evidenced by the Ontario Human Rights Code (“Code”), the Charter of Rights and Freedoms (“Charter”) and international anti-discrimination instruments signed by Canada.”

“The morals of the time, contained in legislation and the common law, attest to the fact that discrimination offends public policy.”

Hull and Popovic-Montag say the Code should apply to testamentary instruments — as interactions between private parties in Ontario must conform to the Code. But regardless of its application, the Supreme Court of Canada has said that even where the Charter does not apply, such as in interactions between private parties, “The common law should develop in accordance with Charter values.”

“Section 15 guarantees equality rights and freedom from discrimination,” they write.

“As such, even if the Code does not apply, it is clear that racial discrimination offends public policy.

“In BMO, at the Superior Court level, Gilmore J. looked behind the wording of the will and held, ‘It is clear and uncontradicted in my view, that the reason for disinheriting Verolin … was one based on a clearly stated racist principle.' The testator's discriminatory motives offended ‘not only human sensibilities but also public policy.’”

“On appeal, the court held that no one should look behind a testamentary instrument if the document is silent about motive for the gift. This argument advances form over substance,” they argue.

As Hull and Popovic-Montag write: “Developing jurisprudence has acknowledged the ways racial discrimination can lurk in the shadows and that it is appropriate, at times, to look behind a testamentary instrument in order to make inferences about racially discriminatory motives. Succession law should not ‘check common sense at the courtroom door’ but should conform to our core values of equality and human dignity by refusing to enforce testamentary instruments motivated by racial discrimination.”

As a matter of public policy, they say, courts should not “condone testamentary instruments where the testator's motives are racially discriminatory.”

As one possible solution, Hull and Popovic-Montag propose a test to allow the courts to “balance the important need to protect testamentary freedom within the publicly funded process of probating a will.

"For the court to maintain its important inquisitorial role, and at the same time measure that publicly funded role against the need for testamentary freedom, we suggest that a court should not set aside a will for public policy reasons unless 'There is overwhelming demonstrative evidence that the rationale for a post-mortem disposition of property is substantially motivated by racial discrimination with the male fides intention to deprive a person who is the natural object of the testator's bounty.'"

To Read More Suzana Popovic-Montag Posts Click Here
To Read More Ian Hull Posts Click Here
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