Could the Charter be extended to prohibit discrimination in a will?Spence v. BMO Trust Company, 2016 ONCA 196 (CanLII)
Ontario’s Succession Law Reform Act (SLRA), unlike that of some other provinces, places a strong emphasis on will formality and strict adherence to the intentions of the testator. This makes it very difficult to challenge a will based on suspicion of discrimination. Private individuals are not subject to the Charter, nor are intra-family relations subject to the Human Rights Code.
There have been some Ontario cases in which a trust or the decisions of a trustee were invalidated because of racial or religious discrimination, but they are special situations that do not have direct application to the situation of a discriminatory will.
In Canada Trust Co. v. Ontario Human Rights Commission [Re Leonard Foundation], 1990 CanLII 6849 (ON CA), the trust was a public charitable trust, which gave the court jurisdiction to intervene on public policy grounds.
In Fox v. Fox Estate, 1996 CanLII 779 (ON CA), the trustee’s actions were prohibited not because they were discriminatory per se, but because they represented bad faith.
Spence was a situation where a Black testator with two daughters had completely excluded one daughter from his will. The will referred only to a breakdown of the father’s relationship with that daughter. Evidence had been provided to the lower court by a friend of the deceased, to whom he had said that he was cutting one of his two daughters out of his will because she had borne a mixed-race child. In Spence v. BMO Trust Company, 2015 ONSC 615 (CanLII), the application judge invalidated the will on the grounds of public policy, but the Court of Appeal reversed.
The primary reasoning of the majority at the Court of Appeal was the principle that, where a will is unambiguous, it is impermissible to look at any extrinsic evidence about it. The majority took a “see no evil” approach. However, they did not absolutely rule out the possibility that public policy could be used to overturn a will:
 Similarly, in Peach Estate (Re), 2009 NSSC 383 (CanLII), an estate trustee would have been required to take affirmative steps in violation of provincial human rights legislation in order to carry out the testator’s intentions regarding the sale of his property. On this basis, the court held that the relevant condition in the testator’s will regarding the class of persons to whom his property might be sold was of no force or effect.
 These, and analogous cases, confirm that Canadian courts will not hesitate to intervene on the grounds of public policy where implementation of a testator’s wishes requires a testator’s executors or trustees or a named beneficiary to act in a way that collides with public policy.
On pragmatic grounds, one might support this approach. Will challenges on grounds such as undue influence are already fairly common, and very costly to all involved. The Court would not want to encourage will challenges based on a mere suspicion of discrimination. However, based on the majority’s decision, a case of a will that was blatantly and explicitly discriminatory might allow the challenger to distinguish Spence.
Is there a basis for a Charter challenge to the SLRA?
In his separate opinion in Spence, Lauwers J.A. concurred in the result, but rejected the view that there is any legal basis to interfere in a will based on such grounds:
 Second, I address the proposed extension of the public policy exception to testamentary freedom as a matter of principle. There is no law in Ontario that entitles Verolin to share in her father’s estate. No law has deprived her of any right. The Charter value of equality that she asserts does not afford her such an entitlement. Ontario could choose to legislate to give effect to the value of equality in estates, but it has not done so.
If the SLRA explicitly discriminated, it would certainly be in violation of the Charter. In distant history, when most wealth was in the form of land, the law of England provided that on an intestacy all the land would go to the eldest son of the deceased. If that was the default on intestacy in the SLRA, it would certainly be struck down as a violation.
In the current situation, the SLRA merely acquiesces in discrimination by private individuals. It omits any attempt to prevent discrimination.
In Vriend v. Alberta,  1 SCR 493, 1998 CanLII 816 (SCC), the Supreme Court found that even an omission could be a Charter violation. This was in the situation where Alberta’s human rights statute, the Individual’s Rights Protection Act, R.S.A. 1980, failed to include sexual orientation as a prohibited ground for discrimination. The Supreme Court required this prohibition to be read into the statute.
59 The respondents contend that a deliberate choice not to legislate should not be considered government action and thus does not attract Charter scrutiny. This submission should not be accepted. They assert that there must be some “exercise” of “s. 32 authority” to bring the decision of the legislature within the purview of the Charter. Yet there is nothing either in the text of s. 32 or in the jurisprudence concerned with the application of the Charter which requires such a narrow view of the Charter’s application.
60 The relevant subsection, s. 32(1)(b), states that the Charter applies to “the legislature and government of each province in respect of all matters within the authority of the legislature of each province”. There is nothing in that wording to suggest that a positive act encroaching on rights is required; rather the subsection speaks only of matters within the authority of the legislature…. [emphasis in original]
However, Justice Cory did qualify this principle by noting that it might not apply in a different context:
63 It is also unnecessary to consider whether a government could properly be subjected to a challenge under s. 15 of the Charter for failing to act at all, in contrast to a case such as this where it acted in an underinclusive manner.
That issue remains unresolved. It is conceivable that Charter rights could be further extended in an appropriate situation, such as a challenge to the SLRA for the failure to prevent discrimination. One could argue that the SLRA goes beyond mere acquiescence, as in practice it is the apparatus of the state, the courts, and the probate process that make wills and transfers of property enforceable. It resembles the following from Vriend:
103 Even if the discrimination is experienced at the hands of private individuals, it is the state that denies protection from that discrimination. Thus the adverse effects are particularly invidious. This was recognized in the following statement from Egan (at para. 161):
The law confers a significant benefit by providing state recognition of the legitimacy of a particular status. The denial of that recognition may have a serious detrimental effect upon the sense of self‑worth and dignity of members of a group because it stigmatizes them . . . . Such legislation would clearly infringe s. 15(1) because its provisions would indicate that the excluded groups were inferior and less deserving of benefits.
This reasoning applies a fortiori in a case such as this where the denial of recognition involves something as fundamental as the right to be free from discrimination.
In helping to enforce a discriminatory will, the Ontario Ministry of the Attorney General and its courts might be considered complicit in the discrimination. In his concurring opinion in Spence, Lauwers J.A. did not mention Vriend, but appears to have had it in mind in rejecting any suggestion that a discriminatory will engaged the Charter:
 Second, in probating Mr. Spence’s will there is no state action that engages the Charter in the relevant sense. The court’s jurisdiction in matters of probate in Ontario is narrow, as described by Cullity J. in Otis v. Otis,  O.J. No. 1732. The basic probate question is whether the will itself is formally valid, the testator was of sound mind, and the will was not made in suspicious circumstances. In probating a will the court is not concerned about the validity of specific bequests and does not require proof that bequests in a valid will are non-discriminatory. The court neither condones nor approves of particular bequests.
In British Columbia, in contrast to Ontario, the Wills, Estates, and Succession Act includes a "variation of wills" provision that allows a court to overrule a discriminatory will, to assure an equitable distribution of the estate among the deceased's children. For example, if a testator leaves everything to his son and very little to his daughter, due to sex discrimination, that could be declared void. A more activist Supreme Court might at some future date use the Charter to decide that this approach is mandatory for all provinces.
Peter Spiro is Principal of Spiro Law P.C. and counsel to www.rogersonlaw.com for estates litigation. This article is intended for general information and you should seek specific legal advice for your particular situation.