Adam, Mat, all

Forgive the rather basic question about Canadian succession law but is
there any statutory provision under which the Court can make what it
regards as proper provision for a child, where the testator fails to
do so?

Kind regards

Ger

On 1/30/15, Adam Parachin <aparachi@uwo.ca> wrote:
> Matt:
>
> Spence suggests that giving no reasons in the will might not be enough.
> Justice Gilmore looked behind the will to find the discriminatory motive,
> relying upon an affidavit from a family friend indicating that she had heard
> the testator allude to discriminatory reasons for excluding his daughter
> from the will.
>
> Part of what intrigues (or offends) me about Spence is how quickly the court
> came to the conclusion that it could set aside the testator's will. One
> would have thought that that would be viewed as a rather serious step that
> should be taken in only the most extreme of circumstances and carefully
> reasoned. Spence is reminiscent of Murley Estate v Murley [1995] N.J. No.
> 177 in which the court simply posited without explanation that a religious
> condition in a private trust is contrary to public policy and that there was
> no need for "lengthy reasoning". Is it really that simple?
>
>
>
> On 01/30/15, "Harrington Matthew P." <matthew.p.harrington@umontreal.ca>
> wrote:
>>
>>
>>
>>
>>
>> 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
>>
>>
>>
>>
>>
>>
> --
>
> Adam Parachin
> Associate Professor
> Faculty of Law
> University of Western Ontario
> (519) 661-2111 Ext. 81445
>