Unjustifiable Interference

"Although it is not expressly stated by Dr. Priebe that he subscribed to white supremacist, homophobic and misogynistic views … (the will’s statements) leave no doubt as to Dr. Priebe’s views."
Justice Alissa Mitchell, Ontario Superior Court of Justice

"People are allowed to be eccentric. It’s fairly stringent, these requirements. It’s the ‘safety’ of the state that (has to be) at risk, and it’s a universally recognized risk, not just that a few people might disagree with what this person is doing."
Laura Cardiff, Toronto lawyer,  specializing in estate cases

Students at the University of Western Ontario and University of Windsor would have been eligible for scholarships for straight, white students.  Christopher Furlong/Getty Images

Dr. Victor Priebe's instructions in his will, according to Justice Mitchell, were to be ignored. Lawyer Cardiff took issue that this decision did not come in the wake of blatant discrimination, and removes the right of an individual to instruct how his estate should be administered. Dr. Priebe, a former radiologist, had left instructions that university scholarships were to be set up in his name, meant exclusively for white, single, heterosexual students. Justice Mitchell ruled this contravened "public policy".

An 80-year-old Supreme Court of Canada judgement was the basis of Justice Mitchell's ruling on a legal principle permitting the squashing of someone's final wishes of the disposition of their wealth in a will if instructions are clearly offensive to state interests. In an another case of obvious instance of discriminatory, racist offence, a new Brunswick man's bequest of $200,000 to an American neo-nazi group was halted by the judiciary. The radiologist's will was deemed to be in violation of the Ontario Human Rights Code but it was nowhere in the same league as the will benefiting a racist group.

The bursaries in question meant to be funded by Mr. Priebe's will were meant to be for students planning studies in science; medicine, genetics, biology, chemistry, physics and pharmacology. The will stipulated that one of the bursaries was to be directed as he wished: to a "Caucasian (white), male, single, heterosexual student", and the other to be reserved for a "hard-working, single Caucasian white girl, who is not feminist or lesbian". Mr. Priebe certainly had his biases, but then don't we all?

Details left in the instructions were quite precise to the manner in which the recipients of the bursaries were expected to comport themselves: to remain single while drawing from the bursaries, that the male bursary holder not be involved in inter-collegiate sports and be capable of demonstrating "they are not afraid of hard manual work in their selection of summer employment". Clearly, the man appeared to be thinking of his own experience and personal preferences as a medical-school students.

The will also had a provision that the bursaries would be cancelled should a court void the will's provisions. So on the balance of moral righteousness and the option of providing two students, either aspiring scientists or medical doctors with the wherewithal to pursue their studies, it's moot whether anything useful to society arose from the decision laid down by Justice Mitchell.

Fotolia   Jamaican-born Rector Emanuel Spence disinherited his daughter, Verolin, because she was carrying a white man's child

Now another Ontario judge has had a similarly interventionist situation turned around when Justice Eleanore Cronk reversed a decision made that challenged the validity of an "absolute, unequivocal and unambiguous" will with the taint of racism. And this time it was a three-judge panel that overturned the original decision to challenge the will, based on a charge of racial discrimination.

"The law does not require a testator to explain, let alone to defend, her/his reasons for testamentary dispositions. Indeed, in my view, the privacy of those reasons is inherent in the principle of testamentary freedom. The court's power to interfere with a testator's testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator's testamentary choices as distasteful, offensive, vengeful or small-minded", wrote Justice Eleanore Cronk.

"The case is an important one dealing with "the intersection of human rights law and the law of wills and estates. The balance of the competing policy interests -- freedom to enjoy property and our response to unjustified discrimination -- is a really hard one", opined Professor David Freedman, a Queen's university instructor in estate law.
Rector Emanuel Spence

An Ontario judge threw out the will of Rector Emanuel Spence, born in Jamaica, who died at age 71 in 2013, and who chose to leave his estate to only one of his two adult daughters and her two children. The older of the two daughters was cut out of the will because she had a relationship with a white man and bore a child out of the affair. In this instance, one individual was deleteriously affected by her father's decision, stemming from his affront that she had a biracial child.