"My daughter married a [black man/jew/woman]!"
Estate planning lawyers hear this sort of thing from time to time from clients who, feeling devastated by a child's personal choices, seek to save their hard-earned wealth from the ungrateful offspring. The freedom to dispose of your estate as you see fit is a basic right, isn't it? Recent caselaw in the news sheds some more light on this issue.
Should you have the right to leave your estate to whomever you see fit? Perhaps. Do you? That is something you need to discuss with your lawyer in detail.
In Ontario, certain people are protected by statute law from being inadequately provided for. The Family Law Act, Ontario, requires that you leave a certain portion of your estate to your spouse failing which he or she may elect to take the share to which a spouse is entitled under the Act. Also, while British Columbia law specifically prevents a Testator from leaving adult children out of his or will, we do not have a clear legislative prohibition like that in Ontario. This issue is in some transition.
One thing has been long been clear: a testator's freedom to impose conditions on inheritances cannot be contrary to public policy. What that means in practice, however, has evolved over time. The past fifty years have seen dramatic changes in social attitudes toward homosexuality, interracial marriages, freedom of religion to name just a few of the issues, and to a certain extent legislation has either reflected or effected these changes. It is no surprise, therefore, that recent legal decisions have impacted the extent to which parents can attempt to control their children's life choices or orientations through their wills.
This week, a court in Newmarket, Ontario, set a new precedent by preventing a man from disinheriting one of his daughters because she had a child out of wedlock with someone with different coloured skin: Spence v. BMO Trust Company, 2015 ONSC 615. The judge nullified the will entirely, stating that the father's motivation in disinheriting his daughter "offends not only human sensibilities but also public policy.” Although this issue has not been ruled on at the Appeal level, for the present it is the new law of the land and anyone preparing a will is advised to plan his or her new will on that basis. If you have an existing will that attempts to punish a child for perceived immoral behaviour, it is strongly recommended that you review your will with a capable estate planning lawyer and ensure that you do not leave your family with a will that will ultimately be invalid!
Harry Robert McCorkill of New Brunswick (McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill, 2014 NBQB 148) outdid even the testator discussed in the previous paragraph. His will was also declared invalid for leaving his estate to an organization that stood for principles and ideals “that are both illegal and contrary to public policy in Canada.” How so? He left a valuable coin collection to a violent white supremacist group based in Virginia. His estate was treated as if he did not have a will. Reader, if you are going to go to the trouble of making a will, please ensure that it will not be treated as if it doesn't exist!
In British Columbia, two decided cases have rejected dispositions in wills where the testator (person who made a will) attempted to leave out a chld or reduce a child's share of the testator's estate because the child was homosexual, also for offending public policy.
In Ontario, a Court of Appeal judge has commented that the behaviour of a mother who deliberately spent the capital out of a testamentary trust (meaning a trust created under a will) that would have otherwise gone to her son was contrary to public policy because of the parents' clear intention to punish him for his romantic involvement with someone out of their religious faith [Fox v. Fox Estate, 1996 779 (ON CA)]. This was not a legal decision setting a will aside on this ground; however, the Court's views on punishing a child for loving outside the faith could indicate the likely outcome of any case on this issue that may arise.
Is it right or wrong to limit testamentary freedom based on the modern public's view of acceptable personal values? People may agree or disagree, but the important thing for anyone with a will, or making a will, is to ensure that the evolving state of the law is taken into consideration so that they do not leave their loved ones with a will that is as good as no will at all!
Information in this article is intended for general guidance and interest, and is not to be treated as legal advice. Readers should always consult a qualified lawyer with their own particular fact situations in respect of legal advice they may require.