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Discrimination in Wills: How far can it go?

  • September 30, 2016
  • Helen Burgess

A central tenet in estates law is that “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”.[1] A testator should have some assurance that his or her wishes will be upheld. However, apart from the obvious litigation risk and antithetic consequences, there are also some exceptions to this general principal.

The doctrine of public policy as it applies in estate law serves to prevent testamentary dispositions where the harm to the public is “substantially incontestable”. [2] It provides a basis for courts to exercise their rights to invalidate dispositions.[3] Of course, what is contrary to public policy changes over time, and conforms to the morals and laws of society.[4] Still, a finding of invalidity will not be justified even though a condition may be inconsistent with standards that are now widely accepted.[5]

In deciding whether judicial interference with testamentary freedom is warranted on the basis of public policy, the courts will consider whether the disposition offends the jurisdiction’s legislation, common law, official declarations of government policy, and the Constitution.[6] If the disposition is not unlawful or contrary to a common law rule, then the testator’s wishes can enjoy the protection of a strong presumption of validity. 

With that in mind, the court in the case of McCorkill v. Streed,[7] was asked to decide whether a Will that was not discriminatory on its face could be void on the basis that the bequest would be used for discriminatory purposes. In that case, the testator left the residue of his estate to the National Alliance (“NA”), which is a Neo-Nazi group that promotes hate motivated violence targeted at identifiable groups.

The testator’s sister challenged the transfer of the residue of the estate to the NA on the basis that it violated public policy and argued that it was contrary to Canadian legislation, undertakings and commitments. The court agreed and struck the bequest on the discriminatory motive of the legatee. It decided that the residual bequest was void because “the purpose of the National Alliance and the activities and communications which it undertakes to promote its purpose are both illegal in Canada and contrary to the public policy of both Canada and New Brunswick”.[8]

What happens then, when the Will does not violate public policy as described above, but racism is alleged to have motivated the testator’s dispositions? The court in Spence v. BMO Trust Company[9] was required to decide whether it could consider extrinsic evidence in finding a racial motive behind a testamentary disposition when the Will did not contain any discriminatory provisions, and in fact, provided an unambiguous reason for excluding the Applicant.

The Applicant was the testator’s daughter, who sought to invalidate her father’s Will on the basis that it offended public policy because it was motivated by racism. The Applicant alleged that she was excluded from her father’s Will because she had a child with a Caucasian man. She alleged that her father, who was black, was racist and did not accept her child.

Interestingly, a provision in the Will stated: “I specifically bequeath nothing to my she has had no communication with me for several years and has shown no interest in me as a father”. Here, the Will provides an unambiguous and non-discriminatory motive for excluding the Applicant from sharing in any part of the estate. Despite this, the Court considered allegations of the testator’s racial motivation to supplant the motive expressed directly in his Will, and decided that it was void because it was contrary to public policy. 

The Court of Appeal reversed this decision, citing that testamentary freedom is a central tenet in estate law that provides a testator with a certain expectation that his or her wishes will be upheld.[10] It held that “[t]he freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law”.[11] Importantly, the Court noted that this case was not a Wills construction case that required it to interpret the meaning of the Will. Instead, the language used was unequivocal and unambiguous, which did not impose any conditions that offend public policy.[12]

Overall, the trend in the case law is clear; courts will likely not interfere with testamentary freedom. One major concern with voiding testamentary documents on the basis of public policy is that it could open the floodgates of estate litigation. Courts remain mindful that one decision can trigger frivolous claims of supposed beneficiaries who lie in wait with a fork to take a piece of the testator’s pie.

Helen Burgess

About the Author

Helen Burgess is an associate litigation lawyer at WEL Partners. She practices exclusively in the areas of wills, estates, trust and capacity litigation. 




[1] Horsnes v. Ortigoza, 2003 MBQB 127 (CanLII), 174 Man. R. (2d) 274, at para. 14 as cited in Spence v. BMO Trust Company, 2016 ONCA 196 (CanLII) at para 111.

[2] In Re Estate of Charles Millar, Deceased, [1938] SCR 1, 1937 CanLII 10 (SCC).

[3] Ibid.

[4] McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased, 2014 NBQB 148 (CanLII) at para 61.

[5] Adam Parachin, Discrimination in Wills, paper May 6, 2015 in “the Six Minute Estates Lawyer 2015” the Law Society of Upper Canada CPD.

[6] Canada Trust Co. v. Ontario Human Rights Commission 1990 CanLII 6849 (ON CA) at para 92.

[7] McCorkill v. Streed, supra.

[8] Ibid.  

[9] 2016 ONCA 196 (CanLII).

[10] Spence v. BMO Trust Company, 2016 ONCA 196 (CanLII).

[11] Id. at para 30, citing Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 1990 CanLII 6849 (ON CA), 74 O.R. (2d) 481, at p. 495, citing Blathwayt & Lord Cawley, [1976] A.C. 397, [1975] 3 All E.R. 625 (H.L.).

[12] Ibid. at paras 52 and 53.

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