In estate planning, the will is generally assumed to be the foundational document in which you are free to say how your assets should be distributed. And for the most part, that is true.
There is legal precedent, however, for overturning a will if it contravenes public policy. For example, we previously discussed an Ontario man's will that was nullified on the grounds that it was racist. Now another Ontario judge has made a similar ruling.
The case centers on a deceased doctor's will that set up scholarships for university students. The trouble is that the will stipulated that the proposed bursaries should only be awarded to white, heterosexual students. Additionally, the students would have been required to remain single in order to continue receiving the scholarships.
The Office of the Public Guardian and Trustee stepped in, however, and asked that those particular stipulations be removed, as they are in violation of the Ontario Human Rights Code. The judge granted the request, referring to a judgment from 1938, when the Supreme Court of Canada ruled that a court can overturn a will if it offends the public interest.
Courts in multiple provinces have made similar rulings in recent years.
In this most recent case, it appears that no one will receive the bursaries proposed in the man's will, as there was a kind of self-destruct clause included in the document. That provision called for the cancelling of the scholarships in the event that a court voided the controversial stipulations.
The case underscores a reality in estate planning: that waste is often the result of unenforceable, poorly drafted wills. For more on proper planning and avoiding estate litigation, please see Hagel Lawfirm's estate planning overview.