I think Gerard's question touches something a bit deeper. Still one of the
leading cases, I think, on the Canadian legislation (which does not exist
in the civil law province of Quebec) is Tataryn v. Tataryn Estate, [1994]
2 SCR 807 <http://canlii.ca/t/1frqk>. One passage from that decision, on
the question of what must be considered in evaluating a claim that
provision in the will was inadequate:

"Furthermore, two sorts of norms are available and both must be addressed.
 The first are the obligations which the law would impose on a person
during his or her life were the question of provision for the claimant to
arise.  These might be described as legal obligations.  The second type of
norms are found in society's reasonable expectations of what a judicious
person would do in the circumstances, by reference to contemporary
community standards.  These might be called moral obligations, following
the language traditionally used by the courts.  Together, these two norms
provide a guide to what is "adequate, just and equitable" in the
circumstances of the case."

This case was interpreting the BC legislation, which is wider than other
statutes in that it does not restrict the jurisdiction to "dependents".
The jurisdiction under the BC legislation is clearly a very wide one. I
think it's fair to say that there has been a lot of uncertainty (and
arguably conflicting ONCA decisions) as to its applicability in Ontario. A
recent case, of which I think Adam and Matthew would approve, says that in
Ontario the variation jurisdiction is only available to dependents: Verch
Estate v. Weckwerth, 2014 ONCA 338 <http://canlii.ca/t/g6q52>: "The
appellants point to no authority in Ontario for the proposition that a
competent testator¹s autonomous distribution of his or her property as
reflected in a properly executed will may be displaced or set aside by the
courts in the exercise of their discretion pursuant to some alleged
overarching concept of a parent¹s moral obligation to provide on death for
his or her independent, adult children." Tataryn was said to be
inapplicable due to the difference in the legislative wording.

It may well be, however, that this issue will continue to arise in other
provinces, and perhaps even in Ontario.

Lionel


On 30-01-15, 11:55 , "Harrington Matthew P."
<matthew.p.harrington@umontreal.ca> wrote:

>Yes.  A number of provinces (if not all have those provisions).
>
>Ontario's is found in the Succession Law Reform Act
>
>Order for support
>58.  (1)  Where a deceased, whether testate or intestate, has not made
>adequate provision for the proper support of his dependants or any of
>them, the court, on application, may order that such provision as it
>considers adequate be made out of the estate of the deceased for the
>proper support of the dependants or any of them. R.S.O. 1990, c. S.26, s.
>58 (1).
>
>In Spence, though, I do not believe the child would have qualified since
>she wasn't a dependent.
>
>---------------------------------------------
>Matthew P. Harrington
>Professeur
>Faculté de droit
>Université de Montréal
>Montréal, Québec
>514.343.6105
>matthew.p.harrington@umontreal.ca
>----------------------------------------------
>
>-----Message d'origine-----
>De : Gerard Sadlier [mailto:gerard.sadlier@gmail.com]
>Envoyé : 30 janvier 2015 11:53
>À : Adam Parachin
>Cc : Harrington Matthew P.; obligations@uwo.ca
>Objet : Re: Public Policy and Wills - Spence v BMO Trust Co
>
>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
>>