Allan Law

Blog

Firm Announcements and Law Updates

Public Policy in Wills

In recent blog posts, I have discussed a case in which the court addressed a will that was deemed to be racist or against public policy.

In Royal Trust Corporation of Canada v. The University of Western Ontario et. al. (2016), the court was once again asked to address a will that contained a provision which appeared offensive to public policy.  The will in question contained the following provisions which were in question:

 

“My Trustee shall expend the balance of the income of my estate…to carry out all such purposes at such times as it determines:

…To provide funds, from time to time and in the discretion of my Trustee for awards of bursaries to Caucasian (white) male, single, heterosexual students in scientific studies…

…Further, to similarly provide funds for an award … to go to a hard-working, single, Caucasian white girl who is not a feminist or lesbian…”

 

The estate trustee named in the will was Royal Trust Corporation of Canada (“Royal Trust”). In light of the terms of the will reviewed above, Royal Trust brought an application to the court to determine whether the terms of the will were void for being against public policy.  The University of Western Ontario was the beneficiary of the scholarship funds discussed above and was therefore named as a responding party.

In Ontario, the court may deem trusts to be void on the ground of public policy to the extent any trust discriminates on the ground of race, religion or sex. The leading Ontario case on the subject is Canada Trust v. Ontario (Human Rights Commission) in which the Court of Appeal ruled that a trust which sets eligibility requirements based on race, religion, ethnic origin and sex is void as against public policy.  The principle being that the courts will not allow a will to be used as an instrument to carry out acts which are offensive to anti-discrimination laws and constitutional guarantees of equality.

In the Royal Trust v. University of Western Ontario case, the presiding judge had “no hesitation” in declaring the qualifications for the trust invalid.  It is interesting to note that the will specifically contemplated that the impugned trust clause might be declared invalid in which case the will directed that the funds set aside for the scholarship were to be gifted to other charitable trusts named in the will.

The case will stand as another interesting precedent on the subject of trusts that are void for public policy.

Thanks for reading,

Jason