In Ontario, the current state of the law is such that a testator is free to exclude an adult, independent child from their will on the basis of their sexual orientation. The discriminatory intent may even be written into the will. For example, the following provision “I am excluding my only son from my will because he is homosexual” is, according to the principles set out by the Court of Appeal for Ontario in the 2016 Spence v. BMO Trust Company1 decision, presently considered to be an acceptable exercise of a testator’s testamentary autonomy. This does not mean that the courts approve of such provisions in a will. Rather, the current state of the law prioritizes the freedom of a testator to dispose of their property as they see fit, subject to certain limited exceptions. The BMO decision has been criticized by many legal commentators, many of whom feel that the law can strike a better balance between a testator’s autonomy and the great social costs which are imposed by allowing discriminatory motives in wills. As a result, the law in this area appears to be far from settled. This blog will look at testamentary autonomy, the types of discriminatory provisions which are not acceptable and the role of public policy as it pertains to private bequests in a will.
A clash of principles
Since homosexuality was decriminalized in Canada in 1969, societal values have evolved to recognize that discrimination on the basis of sexual orientation is an attack on Canadian values. The legislature, as well as the courts, were instrumental in this evolution. In Egan v. Canada, 2, the Supreme Court of Canada held that although “sexual orientation” is not listed as a ground for discrimination in section 15(1) of the Charter, it constitutes an equivalent ground on which claims of discrimination may be based. In 1996, the Canadian Human Rights Act was amended to specifically include sexual orientation as one of the prohibited grounds of discrimination. In Vriend v. Alberta, 3, the Supreme Court held that provincial human rights legislation that left out the ground of sexual orientation violated section 15(1). It is clear that protection against discrimination on the basis of sexual orientation has become a well entrenched social principle in Canadian society.
However, in the estates and trusts context, this principle comes into conflict with another deeply entrenched principle – a testator’s freedom to distribute his or her property as they choose. Testamentary autonomy has long been recognized in Canadian society as an important social interest. The Supreme Court of Canada in Tataryn v. Tataryn Estate 4 stated that the principle of testamentary autonomy is to be interfered with “not lightly but only in so far as the statute requires”. The Court of Appeal for Ontario confirmed that a person has the right, subject to fulfilling specific legal obligations to dependants, to dispose of his or her estate in an absurd or capricious manner, whatever others may think of the fairness or reasonableness of the dispositions.5
The paramountcy of testamentary autonomy
In BMO v. Spence, the Court of Appeal for Ontario authoritatively decided which of these competing principles carries greater weight in the context of an allegedly discriminatory will. BMO concerned a father who disinherited his daughter because, as set out in the father’s will, “she has had no communication with me for several years and has shown no interest in me as a father“. However, the daughter introduced evidence from the father’s former caregiver who swore that the real reason for the disinheritance was because the father (a black man) disapproved of the fact that his daughter had a son with a white man; her exclusion was racially motivated. The Court of Appeal found that the will was not discriminatory on its face, and that the terms which disinherited the daughter were unequivocal and unambiguous (i.e. the provision is clear and no interpretive question arose with respect to its meaning). In those circumstances, the Court found, the caregiver’s evidence was inadmissible. However, in its judgment, the Court went one further in support of a testator’s autonomy and held that even if blatantly discriminatory reasons were included in the will, it would nonetheless have been a valid exercise of testamentary autonomy. The Court stated:
Absent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects a testator’s right to unconditionally dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds.6
Public policy and its limited applicability
The BMO decision was released in 2016, at a time when racial discrimination (#BlackLivesMatter) was beginning to receive global attention. Subsequent years saw the spotlight shine on gender-based (#MeToo) discrimination and the treatment of Indigenous communities in the residential school system (#EveryChildMatters), among others. The Court of Appeal’s refusal to consider extrinsic evidence of racial discrimination, however well reasoned, jars against the backdrop of a modern society which demands action in the face of discrimination. Not yet six years after the decision, it has an inescapably anachronistic feel.
However, the courts are not immune to the concerns of contemporary society, and such concerns can be taken into consideration by the courts in their decisions. This occurs through a doctrine known as public policy. The courts have struck down discriminatory conditions and outright testamentary gifts as being in contravention of public policy, which means that certain gifts, or the conditions placed on those gifts, are deemed to offend those values which are commonly agreed upon in society. The courts have voided testamentary gifts containing discriminatory conditions in the following categories of cases – i) conditions in restraint of marriage and those that interfere with marital relationships, that seek to induce celibacy or the separation of married couples; ii) conditions that interfere with the discharge of parental duties and undermine the parent-child relationship by disinheriting children if they live with a named parent; iii) conditions that disinherit a beneficiary if she takes steps to change her membership in a designated church or other religious faith or affiliation; and iv) conditions that incite a beneficiary to commit a crime or to do any act prohibited by law. There is little doubt that, in today’s society, a conditional gift which seeks to restrain or interfere with persons in a same-sex relationship would be struck down. Public policy has also been used to void a gift where the beneficiary is deemed to be an “unworthy heir” (e.g. a neo-Nazi organization).
The limits to the use of public policy grounds to challenge an allegedly discriminatory provision in a will were laid bare in BMO. The Court of Appeal confirmed that public policy grounds are only available if a discriminatory condition falls under one of the above-mentioned categories of cases or where a condition attached to a gift in a will causes a beneficiary, executor or trustee to act in a manner contrary to law or public policy in order to inherit under the will or in order to give effect to the testator’s intentions. As such, examples of conditions which would run afoul of public policy would include “I hereby leave $50,000 to my only daughter on the condition that she end her same-sex marriage and abandon her lesbian lifestyle” or “I hereby leave $100,000 to the Conversion Therapy Association of Canada”.7
A dependant support application trumps a discriminatory will
One way for a ‘disinherited’8 child to get around an allegedly discriminatory will is to bring a dependants support application. This type of application will only be available where the testator was providing support to their dependent child immediately before their death and where adequate provision has not been made for that child. In Patterson v. Lauritsen, 9, a mother excluded her son from sharing in her estate, partly on account of his homosexual lifestyle. The court ordered that provision be made for the son, and expressed the opinion that although the mother was entitled to her own view against her son’s homosexuality, “the fact of homosexuality in today’s society is not a factor which would justify a judicious parent, acting wisely, disinheriting a child”. In Peden v. Peden, Smith et al. 10, a father reduced his son’s share of his estate on account of his son’s sexual orientation. The will drafting lawyer gave evidence that the father initially wanted to cut out his son entirely because he was gay, which “upset him terribly”, but the father later reneged and gave the son a reduced share. The court intervened and varied the will to give the son a greater share of the estate.
Debate continues regarding the extent to which public policy can govern the types of bequests contained in private wills. The law draws a (somewhat illogical) distinction between different types of discriminatory provisions which appear in wills. The question should rightly be asked as to whether modern society should permit blatant discrimination in a will or whether the protections afforded under the various human rights acts should equally apply to private testamentary acts. Some food for thought was provided by Jane Thomson in her excellent article entitled Discrimination and the Private Law in Canada: Reflections on Spence v. BMO Trust Co.:
While reasonable people may disagree on the outcome of any given public policy inquiry, a point that should attract consensus is that the private law should never be an unexamined and impenetrable shelter for discrimination. However, Spence effectively creates an area of the private law immune to legal scrutiny by precluding the use of the common law doctrine that has been used to directly confront and censure discrimination in Canadian private law.11
Those seeking to defend an allegedly discriminatory will can point to the BMO decision and argue that, unless the impugned provision falls afoul of the limited public policy instances, the will should be upheld. Those challenging an allegedly discriminatory will can point to prominent legal commentators who make the argument that it is acceptable for the courts to recognize racially12 discriminatory motives as a limit to testamentary freedom.13 While the law in this area appears to be far from settled, one point of consensus is that the area is ripe for reform and for the Supreme Court to weigh in on the issues. It will be interesting to see how the Courts deal with this issue on a go-forward basis.
- Spence v. BMO Trust Company, 2016 ONCA 196 (CanLII) ↵
- Egan v. Canada, 1995 CanLII 98 (SCC), (1995) 2 SCR 513 ↵
- Vriend v. Alberta, 1998 CanLII 816 (SCC), (1998) 1 SCR 493 ↵
- Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), (1994) 2 SCR 807 ↵
- Spence v. BMO Trust Company, at para. 111 ↵
- Spence v. BMO Trust Company, at para. 75 ↵
- An Act to amend the Criminal Code (conversion therapy) was assesnted to on December 8, 2021 and came into force on January 7, 2022 making it illegal to subject someone of any age, consenting or not, to so-called conversion therapy ↵
- Note that in Ontario, there is no statutory duty on a competent testator to provide in his/her will for an adult, independent child. As such, a child may feel that they are the natural beneficiary of their parent’s estate, however absent circumstances of dependency or where the child is a minor, the child has no right to receive any portion of their parents’ estate through their will. ↵
- Patterson v. Lauritsen, 1984 CanLII 353 (BC SC) ↵
- Peden v. Peden, Smith et al., 2006 BCSC 1713 (CanLII) ↵
- Discrimination and the Private Law in Canada: Reflections on Spence v. BMO Trust Co., 2019 CanLIIDocs 4476 ↵
- The authors specifically acknowledge racial discrimination, however other recognized forms of discrimination such as national or ethnic origin, colour, religion, sex, age, mental or physical disability and sexual orientation should logically be on an equal footing. ↵
- Hull, Ian and Popovic-Montag, Suzana, Racial Discrimiination and “Private Wills” – The Advocates Journal, Vol. 35, No. 2, Fall 2016 ↵