I agree it’s troubling.
I wondered though that assuming the absence of the affidavit one could assume that as long as I don’t say anything, I`m good.
That, of course, raises for me the troubling question of how far this will go.
Spence seems to raise the spectre of similar will contests based on affidavits or letters or comments about what the testator might or might not have thought or said. Taken more broadly, it seems part of a trend to assume that gift-giving in the trust
or testamentary context is always subject to equality norms. Will “Charter values” inform the interpretation of wills?
That seems to be to be a troubling development if only because, as you suggest quite rightly, that much of this policy-making is done on the fly. I think
McCorkill’s Estate and Fox, and now this case, are good examples of the dangers of reasoning based on notions of « public policy ». (I do recognise that the public policy discussion in
Fox might be obiter.)
---------------------------------------------
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 11:33
À : Harrington Matthew P.; obligations@uwo.ca
Objet : RE: Public Policy and Wills - Spence v BMO Trust Co
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] 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 |
--
Adam Parachin
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445