Some people will ask: "Can I give away my estate to
whomever I want? The answer is not as simple as they may want.
The right of someone to be free to give away their estate as
they wish is deeply entrenched in our common law in Ontario. It is
not an absolute right. There are some limits to your testamentary
If wishes as set out in a will are contrary to public policy,
they may not be upheld.
Several recent decisions by the courts have considered public
policy and provided insight into when the Court will interfere with
the testamentary freedom. In one case, the Court held that a gift
in a will to a charity which supported white supremacy was void as
being against public policy. In another case, however, the Court
said that a father could leave his one daughter out of the will,
and even though she argued he did so because he was racist, the
will was held to be valid on appeal with the Court confirming the
sanctity of testamentary freedom. The distinction? In the case of
the charity supporting white supremacy, the gift was to a public or
quasi-public body (the charity), which would be governed by the
Charter of Rights and Freedoms and human rights legislation. The
Court held that supporting white supremacy was, amongst other
things, contrary to human rights legislation and contrary to public
policy. In the case of disinherited daughter, the gift was between
"private" individuals (between father and daughter) and
therefore the Charter or human rights legislation did not apply
such that the father was free to give away his assets as he wished
(even if it was based on racism).
One lesson from these cases is that individuals who want their
estate given away as they wish should be sure to review their wills
with a lawyer to ensure that the gifts set out in the will are
unlikely to be set aside by the Court.
My friend was married to a Muslim man and they had a daughter together before he divorced her. He recently passed away, leaving another daughter from his first wife, whom he divorced before marrying my friend.
This is an English High Court (Family Division) case involving a Jersey proper law trust whereby Mostyn J examined the treatment of a Jersey trust in divorce proceedings.
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