Law Times

Law Times • June 20, 2016 Page 13 www.lawtimesnews.com Laws required so courts can nix discriminatory wills BY MICHAEL MCKIERNAN For Law Times S ome trusts and estates lawyers say legislative action is needed to ensure courts can invalidate discriminatory wills or bequests on public policy grounds after the Supreme Court of Canada declined a chance to rule on the interplay between testamentary freedom and human rights law. Verolin Spence, the appel- lant in Spence v. BMO Trust Company, initially succeeded in her quest to overturn her father Eric's will after an Ontario Supe- rior Court judge allowed the in- troduction of evidence that sug- gested his disinheritance of her was based on a "racist principle," rather than their estrangement, as cited by Eric Spence in the will. Affidavits from Verolin Spence and her father's caregiv- er alleged Eric Spence, a black man, was racially motivated in leaving his daughter out of the will because she had a child with a white father. However, Ontario's appeal court reversed the decision, rul- ing that the judicial interference with Eric Spence's testamentary freedom was unwarranted, and this month, the nation's top court denied leave to hear Vero- lin Spence's appeal. Even if the elder Spence had stated an explicitly racist reason for leaving his daughter out of the will, Ontario Appeal Court Justice Eleanore Cronk ruled "the bequest would nonetheless be valid" because neither the Charter nor Ontario's Human Rights Code come into play for "testamentary dispositions of a private nature." "Absent valid legislative provision to the contrary, the common law principle of testa- mentary freedom thus protects a testator's right to uncondition- ally dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds," Cronk continued in her March 8 decision. Ian Hull, the co-founding partner of Toronto estates law boutique Hull and Hull LLP, says he is "troubled" by that con- clusion, noting that other appeal court decisions have cast doubt on the privacy of wills, especially in the context of disputes or ap- plications for probate. "I think the lay person look- ing at this case, and the evidence of racist motivation, can be quite properly surprised by the result," Hull says, adding that the time may have come to fill the legislative gap identified by the appeal court. "I don't think it's unfair for courts to expect some legislative guidance on when they can look behind testamentary decisions if someone can show that they have been made based on discrimina- tory motivations," Hull says. "I think we do need the legislature to do that, rather than the courts." Matthew Furrow, a lawyer with Toronto trusts and estates firm Goddard Gamage Stephens LLP, says the Spence decision highlights "peculiarities" in the law regarding wills that offend public policy. For example, while the appeal court found Eric Spence was entitled to disinherit his daughter for discriminatory reasons, the decision suggests he could have violated public policy by making the disinheritance conditional on the same dis- criminatory reasons. "I think testamentary free- dom is extremely important, and if you ask any estates lawyer, they will say the same thing. But I also believe that human rights law is very important," Furrow says. "One dates back centuries, while the other is much more re- cent and developing, and I think there needs to be a reckoning there. Society needs to grapple with where the boundaries should be, and that may have to happen through legislation rath- er than the courts." At the same time as its denial of leave in Spence, the Supreme Court of Canada also refused to hear an appeal in the case of Rob- ert McCorkill, a New Brunswick man who left the residue of his estate, reportedly worth up to $1 million, to a neo-Nazi organi- zation based in the U.S. A New Brunswick judge voided the un- conditional bequest on public policy grounds, ruling that the group's white supremacist char- acter made it an unworthy heir. Paula Lester, who practises with Ottawa firm Nelligan O'Brien Payne LLP, says there is one big difference between the New Brunswick and Ontario cases. "McCorkill actually made a positive bequest, which is much easier to find void than a lack of a bequest," she says. Despite the Supreme Court steering clear of the cases, will drafters can still draw lessons from both, according to Lester. "Any lawyer who is asked to place conditions on a gift that would require executors or trust- ees to act in a way that is against public policy would be well ad- vised to let clients know that they are likely to be struck out by a court," she says. "McCorkill tells us that clients need to be careful who they give their gifts to. In that case, it was a gift to a neo-Nazi group that the court found void, but lawyers should ask clients what their groups do, because it's possible the prin- ciple could be expanded to other groups where things are a little less clearcut. For younger clients, I think it's a good idea to point out that what is against public policy can change with time." Furrow says he was "kind of surprised" by the Supreme Court's decision to deny leave in both cases. "It seemed like an opportu- nity to see where the law is, and maybe develop it a little," he says. LT Trusts & Estates devrieslitigation.com (416) 640 2754 de VRIES LITIGATION LLP is a leading firm in estate, trust and capacity litigation with offices in Toronto and Oakville. Areas of expertise include: will challenges, beneficiary and attorney disputes, dependant support claims, contested passing of accounts, and disputed estate administration. Our firm has built its reputation on excellence and effective advocacy. We also have a proven track record for estate appeals. Referrals are welcome. LITIGATION. RESOLUTION. Untitled-7 1 2016-06-14 4:19 PM Ian Hull says some appeal court decisions have cast doubt on the privacy of wills. Platinum Sponsor Silver Sponsor Bronze Sponsor Hosted in Partnership With Date: Sept. 8, 2016 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Keynote Speaker: Brian Zubert, Director, Thomson Reuters Labs - Waterloo Region Dress: Business Attire Innovation. 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