Generally, when people write a Will, they have fairly broad discretion to decide how the proceeds of their estate will be used, and to whom their assets will be gifted. However, there are certain times where a Will is found to be invalid for public policy reasons. A few of these reasons are provided below from your Sherwood Park Wills and Estates lawyer.
Discrimination on the Basis of Race, Gender, Sexual Orientation, or Other
Although this topic has not been explicitly broached in Albertan courts, Ontario and Nova Scotia courts have found that Wills that discriminate on the basis of race and sexual orientation are invalid for public policy reasons.
The law is unclear as to whether evidence of a person’s motives for including or excluding a person from a Will can appropriately be considered in determining if the Will is discriminatory or if a Will can be invalidated only where its text is clearly discriminatory.
Although it is an unusual scenario, the testator’s intentions are often an issue when the property is being gifted to a particular person. More often the issue is the Will instructs the executor to either sell or gift a particular asset to an undefined class of possible recipients, but defines that class by race, religion, or other. An example of a Will provision that was found to be invalid in accordance with the principles of the Human Rights Code is in the Nova Scotia decision Peach Estate (Re), 2009 NSSC 383 (CanLII). Here, the problematic clause instructed that the testator’s house be sold only to a person who identified as being of Presbyterian or Anglican religious faith.
Failure to Provide for Dependants
A Will must provide adequate provisions for the testator’s dependants. In Alberta, this principle of public policy is enshrined in the Dependants Relief Act, which defines dependants as:
the spouse of the deceased;
the adult interdependent partner of the deceased;
a child of the deceased who is under the age of 18 years at the time of the deceased’s death; and
a child of the deceased who is 18 years of age or over at the time of the deceased’s death and unable by reason of mental or physical disability to earn a livelihood.
Most of these definitions are fairly straightforward. However, the term “adult interdependent partner” is not entirely clear. The term is defined in a separate act, the Adult Interdependent Relationships Act, and is meant to address long-term, committed relationships that do not qualify as spousal relationships. This includes adult couples that have lived together for a period of three years or more, or couples that have children together and have lived together for some time, even if they are not married.
Although you are supposed to be able to make a Will in accordance with your wishes, public policy concerns have led to the creation of legislation designed to ensure that:
children and adult children with disabilities are adequately provided for by their parents; and
spouses and partners who have made career sacrifices, raised the children, or grown dependent on their partner’s financial assistance, continue to be looked after.
In Craigmile Estate (Re), 2016 ABQB 125 (CanLII), the court varied a Will where it provided inadequate provisions for the testator’s son, who suffered from bipolar and schizophrenia. The Will provided significant assets to be donated to various charities. The court found that the Will had insufficient provisions for the son, who was already unable to meet his monthly expenses, and would likely be unable to pursue stable employment in his lifetime. A complex order was issued that would entitle the charities to collect on the son’s portion of the estate once he passed on, in order to follow the testator’s original wishes as closely as possible. Other Miscellaneous Reasons While the above concerns are perhaps the most common, there are a variety of reasons why a Will may be found to be void for public policy reasons. However, this is quite a nuanced area of law, and courts have struggled with striking the balance between allowing the testator freedom to dispose of his or her assets as desired, while disallowing activity that seems inherently wrong. A few of these other reasons Canadian courts have found a Will to be invalid are:
the Will requires assets to be transferred to an organization that contravenes public policy and/or is known to perpetrate hate crimes (e.g., charitable donations to Neo-Nazi or white supremacist organizations);
the Will makes beneficiaries’ entitlement to their portion of the estate contingent on factors that unduly control their freedom (e.g., being denied their portion of the estate if they marry a particular person); and
the Will requires a crime to be committed in order for a beneficiary to collect his or her portion of the estate.
Again, what constitutes a public policy concern that should override a testator’s wishes is still a difficult question. Contact a Wills & Estates Lawyer in Sherwood Park, Alberta If you have any concerns about ensuring that your Will stands up to scrutiny, call Spratlin Law Office’s Wills lawyers at 780-464-5404. We can review your Will and advise you if there are any clauses that may later be challenged.