In the spirit of testamentary autonomy, will makers often attempt to impose a condition to a gift and attempt to control the destiny of property or to dictate the conduct of the donee with regard to it. There is no objection per se that the testator is allowed to control the destiny of property after death however if the gift imposes conditions or bequests that are deemed to be contrary to public policy, then the courts may intervene to limit or set aside the bequest.
PUBLIC POLICY IN ESTATES
Public policy in the Courts is very much an unsung hero in the history of the common law that we inherited.
Many social issues for centuries have been dealt with by unbiased, nonpolitical judges asserting their opinions on issues of morality by which the Court intends or expects most of society to abide.
Many of the conditions found to be against public policy are much as one would expect
• inciting the commission of crime;
• intending to separate husband and wife;
• attempting to deprive a parent of a relationship with his or her children; and
• racial or religious prohibitions.
The addition of the Canadian Charter of Rights and Freedoms in 1982 brought much public focus to the types of decisions that had been made by the Courts for centuries as being “void as against public policy.”
Public policy now quietly complements the Constitutional provisions provided by the Charter of Rights. In most legal situations involving questionable bequests contained in a will, it will be the law of public policy that will pertain much more likely than the Charter of Rights. Public policy has not been limited or added to by the Charter of Rights—they simply coexist.
By its very nature, public policy has an inherent fluidity and has been shown to change over time, and on occasion, change dramatically and quickly—such as the recent public acceptance of same sex marriage and issues related to medicinal marijuana.
Often, it is left to the Courts to set such policy or, where statutory, to interpret such legislation so as to reflect and determine public morality as society evolves. For example, in the ’60s the Courts in Quebec struck down much of former Premier Duplessis’s “excessive” legislation by determining it to be void as against public policy.
Public policy decisions are often very political in the sense that the Courts have the inherent jurisdiction to review statutory legislation with respect to legal matters, as well as either lead or follow public opinion. Those situations often lead to conflict between the judiciary and the Legislators, but we are fortunate that our system has such checks and balances.
PUBLIC POLICY AND BEQUESTS IN WILLS
Wills often reflect the testator’s character or deeply held beliefs and values however what those individuals regarded simply as free speech, may also conflict with acceptable public values.
In wills when conditions are attached to gifts that require the beneficiary to discriminate against persons on the basis of race, creed, nationality, or sexual orientation, the Courts will in most situations find such gifts to be void as being contrary to public policy.
Oldffieldv. Transamerica Insurance Co. of Canada, 2002 SCC 22, on the issue of conflicting values, stated at para. 77 “it is not so much a question of which public policy prevails but rather ensuring that the objectives of competing public policies be conciliated and that a just result ensues”.
WILLS VARIATION CASES
The leading case on wills variation in British Columbia, Tataryn v Tataryn Estate (1994) 2 SCR 807 assessed the moral claims owed by a parent to an adult child stating at paragraph 28 that “ in societies reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.
Public policy as previously stated, is closely related to contemporary community standards.
Even prior to Tataryn the 1984 decision Patterson v Lauritsen (1984) 6 WWR 329 varied a will to provide an equal one quarter share to a disinherited gay son on the basis that homosexuality was not a factor which would justify a judicious parent wisely disinheriting a child.
In Chan v Lee Estate 2002 BCSC 678 the court varied a will in favour of Chinese daughters who had been largely deliberately disinherited as the will greatly favoured their brothers pursuant to Chinese tradition, which was found to be irrelevant and not the way of Canada.
Similarly in Prakash v Singh 2006 BCSC 1545 the court varied a will in favour of the Indo Canadian daughters where the estate had largely been left to the male children.
The court in Prakash stated:
58. ” In modern Canada, where the rights of the individual inequality are protected by law, the norm is for daughters to have the same expectations is sons when it comes to sharing in their parents estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children of lived all of their lives in Canada.
59. “A tradition of leaving the lion share to the sons may work agreeable. In other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute in this province.”
A similar approach and outcome in favour of four Indo Canadian daughters occurred in Grewal v Litt Estate 2019 BCSC 1154 where a ten million dollar estate was more equitably divided between the daughters and the two sons.
In Canada Trust v Ontario Human Rights Commission 74 O.R. 481, the Ontario Court of Appeal found that a charitable trust was established to provide scholarships on discriminatory basis, and held that the trust violated public policy, as it was premised on notions of racism and religious superiority.
The court found that the trust should not fail and applied the cy-pres doctrine, so as to permit the general charitable intent to advance education to be implemented. The recitals were struck down with respect to race, color, creed or religion, ethnic origin and sex. ( The cy-pres doctrine is an equitable rule of construction where the courts will give effect to the charitable intention of the testator as near as possible when it would be contrary to public policy or illegality to give it literal effect.)
The trust had been set up to provide scholarships exclusively to white Protestant British subjects, and the amount of income spent on providing scholarships for female students was not to exceed one quarter of the total money available for all students.
The appeal court commented that public policy is “an unruly horse and should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does not depend on the idiosyncratic inferences of a few judicial mind.”
RACIST AND ILLEGAL ORGANIZATION BEQUESTS
In Canada probably no case has gone further in striking down the provision of a will than McCorkill v. McCorkilll NBQB 249, where a New Brunswick Court invalidated a large testamentary gift to a neo-Nazi organization. This case is interesting in that while the deceased was free to gift the racist organization all he wanted while alive, the Court ignored his testamentary autonomy, and found the bequest to be invalid as going against public policy because of the beneficiary itself.
The Court summarized the neo-Nazi organization as being “hate inspired, white supremacist racism, and more generally disgusting repugnant and revolting.” The judge went on to state that their publications “constituted a clear violation of the criminal law prohibiting against the willful promotion of hatred.”
In addition the promotion of hatred against groups that the National Alliance deemed non white violated S. 319(2) of the Criminal code.
Hence the Court struck the bequest on the basis that such activity promoted by the intended beneficiary contravened Canadian public policy.
Spence v BMO Trust Co. 2015 ONSC 615 set aside a bequest from a black father who had disinherited his daughter as the court found that the testator did so solely because she had a child with a man who is not black. The court allowed extrinsic evidence to establish that despite having had a close relationship with the applicant, and no relationship with his other daughter who he benefited for many years, that there was no other reason for the disinheritance based on the evidence led by the applicant that the deceased had told a witness on several occasions that he disinherited his daughter because the father of her son was not black.
The Ontario Court of Appeal found that it was in the interests of society that the court intervened on the grounds of public policy, and set aside the bequest on the basis of racism.
Public policy as it relates to discrimination and racism is not determined by reference to any particular statute or province, but is gleaned from a variety of sources including provincial and federal statutes, official declarations of government policy and the Constitution , including the Canadian Charter of Rights and Freedoms.
Public policy against discrimination is reflected in the antidiscrimination laws of every jurisdiction in Canada. These rights have been given a special status by the Supreme Court of Canada in the decision Ontario Human Rights Commission vs. Simpson Sears LTD (1985) 2 SCR 536.
Courts have been reviewing Wills and other documents for centuries when they are questionable with respect to matters pertaining to public policy. The introduction of the Charter of Rights has simply brought more focus to the public that Courts have the power to review offensive provisions of legislation as well as legal documents and testamentary bequests.
Recent decisions such as the aforesaid Spence and McCorkill cases indicate the willingness of the Courts to intervene and to continue to expand the concept of “void as against public policy” when and where appropriate.