Adam:   Thanks for this.  I was hoping you were going to go first.     I agree with you.  I wondered about the decision since it is clearly a huge departure from Leonard, which clearly states that that holding does not apply to “private trusts” and thus not apply to wills.  You raise exactly the right question:  Of what right has the daughter been deprived?  She has no right to inherit.  So, where is the discrimination?   If the father were alive, he could write out a cheque to one daughter and not the other and say, “I’m not giving you any money because you married a white man.”  What would the jilted daughter do?  Would the law courts entertain a claim of discrimination?  I think not.  So, what is the difference that he does so at his death.  What about death changes the rules of gifts?   I supposed one would argue that “wills are different because they involve the state in discrimination.”  This seems for many to be the approach of SOME American courts after Shelly v. Kraemer.  But that seems unsatisfactory.  Every time I write a cheque I raise the potential that the state will become involved in the transaction, if only because the clearing houses and banks are monitored by the state.   Put even more bluntly, this case seems to raise this problem:  If I hate Catholics and my daughter marries a Catholic, I can refuse to give her money and say nothing about my reasons in the will.  The gift is good.  If I am explicit about my reasons, some judge will second-guess me.  So discrimination is possible as long as you shut up about what you’re doing.  That hardly seems to be a rational rule.   In short, I look at the case and conclude just that.  On a practical level, the holding can be nullified simply by telling clients to give no reasons for their actions.   On a theoretical level, I am troubled by the increasing trend of judges to interfere with a person’s freedom to dispose of his own property as he sees fit.   Am I way off here?   Thanks. Matt   --------------------------------------------- Matthew P. Harrington Professeur Faculté de droit Université de Montréal Montréal, Québec 514.343.6105 matthew.p.harrington@umontreal.ca ----------------------------------------------   De : Adam Parachin [mailto:aparachi@uwo.ca] Envoyé : 30 janvier 2015 10:18 À : obligations@uwo.ca Objet : Public Policy and Wills - Spence v BMO Trust Co   Subscribers might recall some posts last summer about McCorkill v Streed 2014 NBQB 148, a controversial case in which the New Brunswick Court of Queen's Bench struck an unconditional bequest to a racist corporation on the basis of public policy.   Well, McCorkill was just taken one step further by the Ontario Superior Court of Justice in Spence v BMO Trust Co, 2015 ONSC 615 (CanLII).  In an eye-opening judgment, Justice Gilmore reasoned that it is against public policy for a testator to exclude an adult child from his or her will for a discriminatory reason.    The testator was survived by two adult daughters.  He left nothing in his will to one of the daughters, expressly stating in the will that this was because the excluded daughter had not communicated with him for several years.     Relying on affidavit evidence, Justice Gilmore concluded that the real reason was that the testator disapproved of the excluded daughter having had a child with a white man.  It was held in paragraph 49 that this discriminatory motive "offends not only human sensibilities but also public policy".  The will was struck with the result that the surviving daughters shared the estate equally on intestacy.     The case raises some serious concerns.  Given that the testator's daughter was not entitled to share in her father's estate in the first place, it is not obvious why the testator's motive for excluding her from the will has any relevance whatsoever.  She cannot be improperly deprived of something to which she was never entitled.    Testamentary freedom is above all else the freedom to determine who will share - and who will not share - in the testator's estate.  There is no normative estate distribution in our law from which testators may only depart for "good" reasons.    The only cases cited by Justice Gilmore in support of the holding were Canada Trust Co v Ontario Human Rights Commission and McCorkill v Streed.  Neither case lends any support to the outcome in Spence.   The upside is that we have a growing body of estates cases illustrating for students the familiar criticism that the doctrine of public policy is "an unruly horse".    -- Adam Parachin Associate Professor Faculty of Law University of Western Ontario (519) 661-2111 Ext. 81445