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Thursday, March 3, 2016

Discriminatory provisions in a will struck down by court

"Testamentary freedom" is the idea that when we make our wills, we can express our wishes. It's the idea that we can choose whatever beneficiaries we want and give them what we want. However, this freedom is not absolute; some gifts to some people are prohibited.

I'm not talking about the fact that you can't leave out a spouse or a minor child without inviting a challenge. That's a different topic for another day. I'm talking about the fact that you can't always choose to prevent certain people from inheriting from you. There are some types of gifts in wills that are prohibited under Public Policy rules. Those rules say that gifts in wills that are contrary to public policy, discriminatory on the basis of race, creed, citizenship, ancestry, place of origin, colour, ethnic origin, sexual orientation, or otherwise, are void or illegal.

These rules definitely affect the freedom of an individual when it comes to making wills.

Let's look at the recent case of Royal Trust vs the University of Western Ontario. That case concerned the will of Dr. Victor Hugh Priebe. In his will, Dr. Priebe set up future scholarships and described who the recipients of those funds should be. Some examples are:

- "Caucasian (white) male, single, heterosexual students in scientific studies"
- "No awards to be given to anyone who plays intercollegiate sports"
- "a hard-working, single, Caucasian white girl who is not a feminist or a lesbian, with special consideration, if she is an immigrant, but not necessarily a recent one"
- "the Trustee will reassess each candidate at that time to evaluate their academic progress and adherence to remaining single"

Obviously Dr. Priebe had some strong views on how he wanted his legacy to be paid out. The executor of the estate brought the will provisions to a judge for what is known as advice and direction. It's important to understand that this does not mean the executor was challenging the will or trying to overturn it. Any executor who is faced with a question he or she does not have the legal authority to deal with may ask a judge to rule on the issue.

In this case, the executor suspected there might be trouble with some of the clauses mentioned above, and asked the court (among other questions) whether any of the provisions of the will were void or illegal because of the Public Policy rules.

The judge looked at the wills carefully and said that each trust must be evaluated on a case-by-case basis should its validity be challenged, and cautioned that not all restrictions amount to discrimination and are therefore contrary to public policy. The judge ruled that the restrictions relating to race, marital status, and sexual orientation and, in the case of female candidates, philosophical ideology, were void as being contrary to public policy. He believed that the will expressed Dr. Priebe's intention to discriminate on these grounds.

The end result is that while testamentary freedom exists, it does not allow us to make wills that clearly discriminate against individuals or groups of people based on race, marital status, or sexual orientation.

If anyone would like to read the entire case, click here.

14 comments:

  1. The executor of the estate brought the will provisions to a judge for what is known as advice and direction. [...]
    Can I write to a Judge?
    I once wrote to a Judge in Ontario re behavior of 2 lawyers and got a reply from the Judges assistant that my letter was inappropriate. This lawyer was part of an estate Case Management Conference and also took part in a lawyer Getting Off The Record. Sounds like a conflict of interest to me. TBC

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    1. No, you can't write to a judge. If you want to make submissions to a judge it has to be done in open court using the court process (i.e. in a lawsuit or hearing of some kind).

      In your particular case, your letter was also misdirected, in the sense that complaints about lawyers' conduct don't go to a judge. They go to the provincial Law Society.

      Lynne

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    2. One wonders how the court would have responded if the bequest had specified that it be for a non-caucasian, gay, lesbian or bi-sexual student. The fact that racism goes both ways is also contrary to public policy.

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    3. Very true, nextdoor neighbour. I don't know of a case like that, but I can be hopeful that the rules against racism are equitably applied.

      Lynne

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  2. Thanks. I am 'well' aware of the LSUC-Law Society Upper Canada.

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    Replies
    1. Oh dear. That sounds like the voice of experience :(

      Lynne

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  3. Did Professor Priebe write up his own will or did a lawyer do it? Wouldn't a lawyer have noted that he shouldn't discriminate like that? Not to mention his referring to "male" rather than 'boy' in the first instance, but a female is belittled as a "girl" and even though it is thanks largely to feminism that 'girls' can attend university, she is not to maintain such egalitarian views.

    Shouldn't a lawyer be advising against that sort of thing? The will was written in 1994, not 1954.

    ReplyDelete
    Replies
    1. That's an excellent question. I went back and re-read the case to see whether it mentioned the author of the will, but I didn't see that mentioned.

      I would certainly hope that if he consulted a lawyer, the lawyer warned him against including these clauses. However, I can tell you from personal experience that sometimes clients insist on having certain provisions in their wills against their lawyer's advice. In that circumstance, sometimes the lawyer ends up making the will anyway. It could have been that kind of situation.

      I suppose it's also possible that there was a lawyer who didn't really know the law well enough, in which case I expect he or she is sleepless with anxiety at the moment, wondering whether there is going to be a negligence claim.

      Lynne

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  4. Lynne
    How does one go about 'a negligence claim' against a lawyer?

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    1. There are two possibilities. One is through the law society and the other through the courts. Taking one direction doesn't exclude you from taking the other.

      Every lawyer is registered with the law society for his or her province or territory. They are our disciplinary body, so if we do a bad job for our clients, we can be reported to them. Because this is a disciplinary process, the possible outcomes are things like suspension or disbarment for the lawyer.

      The other possibility is suing the lawyer in regular court for the tort of negligence. It's like suing anyone else. The basis of the claim is that someone who owed you a duty of care did not do what he or she was supposed to do, resulting in a loss to you. You'd need to hire a lawyer, I would think, since it involves a full trial. A successful outcome would involve you getting damages (that is, money) from the lawyer or his/her insurer.

      Lynne

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    2. Lynne
      Thanks for your reply. As you are probably aware, the success rate with the LSUC is dismal. There is a Roger's report that supports that. I did go to the LSUC with a 'genuine'complaint against a lawyer but the LSUC changed agents half through the proceedings and it was downhill from there. Firms with many lawyers who have been around for a long time and who have paid the LSUC fees get the edge. I was a total novice with a complaint re my first lawyer but I will try again with many complaints re another. Finding a lawyer to go after another lawyer in the same area is VERY difficult as I have found out. TBC

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    3. Re the above I would like to add that I did write a letter to my lawyer inquiring about suing another lawyer (local). He never responded. They have known each other for decades. They are part of the Old Boys Network.

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    4. The response to a suggestion of suing another lawyer varies from person to person. I can see someone not wanting to sue a close friend, as that would spill over into their personal lives. But it's not the case that no lawyers will sue other lawyers, by any means. During my time working on the bar course in Alberta, I had more than one junior lawyer ask me how to do the paperwork for that very purpose.

      Lynne

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  5. This comment has been removed by a blog administrator.

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