Can I be disinherited by a Will on the basis of discrimination?

Generally speaking, a person has the “testamentary freedom” to do what he wants with his Estate upon death, though there are some limits on that freedom owing to public policy concerns, and potentially including blatant discrimination.

 Recently, one case went further and caused many articles to be written.  In that case, the Testator was black.  His daughter married (and had children with) a white man; and the Testator disapproved.  This ultimately led to an estrangement between them and to the daughter being excluded from the Will.

 The Will itself, however, simply stated that the daughter was being excluded because she had no communication with the Testator for several years.  There was no mention of race, or any other indication that the Testator was motivated by race or discrimination in making his Will.

 The Court at first instance found that the Will was discriminatory (on the basis of the Testator’s motive) and therefore invalid. 

 In April 2016, however, the Court of Appeal overturned that decision, finding that the Will was not discriminatory on its face and therefore did not offend public policy. 

Brad Wiseman
Brad Wiseman
P: 905.572.5828
bwiseman@rossmcbride.com