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.