Discrimination in Wills and Trusts

Abstract

What are the limits of testamentary freedom? At one time this topic was dominated by concerns over protecting the living from the “tyranny of the dead hand” through rules such as the rule against remoteness of vesting. Concerns of this nature remain with us but have waned considerably in their perceived importance. Today, objections are more likely to be raised over the substance of a testator's control over property than over the duration of that control. Substantive objections are admittedly not a new phenomenon as the law has long since formalized rules prohibiting settlors of trusts from abusing the rights of property by inducing beneficiaries to commit crimes, get divorced or engage in other behaviour contravening the policy of the law. What has changed is that evolving human rights and equality norms raise the possibility of a new basis for substantive objection, specifically the idea that discriminatory testamentary dispositions are void because they violate an established public policy against discrimination. Few values can lay claim to either the normative force or instinctive appeal of equality. And yet this paper (focusing on Anglo-Canadian common law) contends that a common law rule prohibiting discrimination in private trusts has yet to crystallize. The recent decision of the New Brunswick Court of Queen’s Bench in McCorkill v McCorkill Estate has, however, brought this issue to the forefront. The Court in McCorkill Estate took the highly unusual, perhaps unprecedented, step of striking an unconditional bequest based on the bad character of the legatee and the discriminatory uses it would most certainly make of the bequest. This paper contends that McCorkill Estate has a great potential to significantly change the law (and not necessarily for the better) by shifting the historical focus away from the character of testamentary dispositions and toward the character of beneficiaries.