(uniquement en anglais)
By: Liz Kieffer
Introduction
Since the start of the century, Ontario has made significant legal developments across many areas of law to make improvements for the 2SLGBTQ+ community. From the recognition of same-sex marriage in the early 2000s,1 to the inclusion of gender identity and expression as a prohibited ground of discrimination in 2012,2 Ontario has continuously affirmed the rights of 2SLGBTQ+ persons. While these legislative changes had an obvious and direct impact on 2SLGBTQ+ individuals, laws of general application also shape the rights and lives of this community. In estate law, while laws may appear neutral on their face, there is still significant room for growth to recognize the unique experiences of 2SLGBTQ+ people.
Despite advancements in succession laws to recognize and protect 2SLGBTQ+ individuals, significant gaps remain that have a disproportionately negative effect on the 2SLGBTQ+ community. This paper will therefore present possible solutions that would create more inclusive and equitable estate laws for the 2SLGBTQ+ community in Ontario.
Important Definitions
The acronym 2SLGBTQ+ will be used frequently throughout this paper to refer to two-spirit,3 lesbian, gay, bisexual, transgender, queer, and others who identify as a part of the community.4 The term transgender will appear often and refers to anyone whose gender differs from the gender they were assigned at birth. Specifically, a transgender man refers to someone who was assigned female at birth but later comes out as a man, and a transgender woman is someone who was assigned male at birth but later comes out as a woman. Non-binary people also fall under the transgender umbrella, and this term describes anyone whose gender falls outside the binary categories of man and woman. Additionally, the term cisgender refers to people whose gender is the same as the gender they were assigned at birth. In other words, a cisgender person is someone who is not transgender.5
Common-Law Intestacy Rights for 2SLGBTQ+ Individuals
Intestacy Rights Have a Disproportionate Effect on Same-Sex Couples
The Ontario Succession Law Reform Act (SLRA) does not permit spouses in common-law relationships to inherit through intestacy upon the death of their spouse. Only married spouses have this right.6 While this provision applies equally to both same-sex and different-sex couples, it has a disproportionate effect on same-sex couples. Not only are the majority of same-sex couples (67%) in a common-law relationship,7 but the majority of common-law relationships are also between 2SLGBTQ+ individuals (77%).8 A poll conducted by CIBC concluded that only 39% of 2SLGBTQ+ people in Canada have a will, which is lower than the national average.9 Thus, many 2SLGBTQ+ individuals have no right to inherit if their partner dies intestate.
It is a common misconception that in Ontario, common-law spouses have the same rights as married spouses upon one another’s death. One reason may stem from confusion regarding who is considered common-law. Under the Ontario Family Law Act (FLA), the qualifications are having cohabitated continuously for a period of not less than three years, or parent a child together.10 However, federally, under the Income Tax Act, the threshold for being considered common-law is having lived together in a conjugal relationship for 12 continuous months, or living together and raising a child together.11 A third definition can be found under the Indian Act, which notes that two individuals are common-law after they have cohabitated in a conjugal relationship for at least one year. No reference is made to having a child together.12 The varying definitions result in confusion surrounding who is common-law, which in turn results in confusion as to what rights someone is entitled to.
Another reason for the misconception regarding intestacy rights is that in many areas of law, both common-law and married spouses are granted the same rights. For income tax purposes, married and common-law spouses have the same access to tax benefits and deductions.13 Additionally, under the FLA, obligations for spousal support apply equally to both married and common-law spouses.14 Based on the foregoing, it is not unreasonable for individuals to assume that the same rights apply for married and common-law spouses upon intestacy.
This is a serious problem as dying intestate as a 2SLGBTQ+ individual can create significant problems for family left behind. Darren Lund, an estate planning lawyer in Toronto, reflected on a time when he worked with a gay couple to navigate intestate succession. In this case, the couple, A and B, had been living together in a committed relationship for nearly 20 years. Mr. Lund was consulted when A became very ill, with a prognosis of only a few weeks left to live. Neither A nor B had wills, and the two held the incorrect assumption that as common-law spouses, the survivor would share in the distribution of the deceased’s estate. Once they realized their mistake in the law, A was so ill that he did not have the requisite capacity to execute a will. Mr. Lund broached the idea that the two get married so that B would be the sole beneficiary of A’s estate. But at the time, A did not have the capacity to marry either.15
A died soon after, and B not only had to deal with the grief of losing his loved one, but he also faced extreme hostility from A’s homophobic next of kin. In fact, A was estranged from his family and had not spoken to them in over 15 years. As a result of intestacy laws, A’s family inherited his entire estate, leaving nothing to B. This example is not an outlier.16 Even though intestacy laws apply equally to same-sex and different-sex couples, they have a disproportionate impact on the 2SLGBTQ+ community.
Intestacy Rights Should Be Extended to Common-Law Spouses
While one could argue that everyone in common-law relationships should simply execute a will to ensure their common-law spouse is provided for upon their death, scholars have emphasized that this is not a practical solution. In a perfect world, no one would die intestate. However, the reality is the world is not perfect, and provisions should be made to include everyone.17 The best way to ensure 2SLGBTQ+ couples can inherit their same-sex partner’s estate upon death is for the law to permit common-law spouses to inherit upon intestacy. This proposed solution would modify section 1 of the SLRA to alter the definition of spouse. Currently, spouse has the same meaning as section 1 of the FLA which defines it as “either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith…”18 Instead, the SLRA should define spouse according to section 29 of the FLA, which expands on the previous definition to include “either of two persons who are not married to each other and have cohabited, (a) continuously for period of not less than 3 years, or (b) in a relationship of some permanence, if they are the parents of a child…”19 This change would avoid the outcome of cases like A and B.
Making this change is not unreasonable. Many jurisdictions across Canada permit common-law spouses the same rights on intestacy as married spouses. In British Columbia, two people are considered spouses if they are married, or live together in a marriage-like relationship for at least two years. There, if a person dies without a will, their spouse is entitled to a share of the estate.20 Similar legislation is found in Alberta,21 Saskatchewan,22 Manitoba,23 Prince Edward Island,24 the Northwest Territories,25 Nunavut26, and under the Indian Act.27 With there being a 447% increase in common-law relationships in Canada from 1981 to 2021,28 it is time that intestacy rights be extended to people in these partnerships. This would be beneficial to all common-law couples, including same-sex common-law partners.
Deadnaming and Misnaming in Testamentary Documents
The Outcome is Ambiguous when Transgender Beneficiaries are Misnamed
Another concern that arises for 2SLGBTQ+ people occurs when an individual’s current name is not the name that appears in the will. For instance, a testator may include in their will a gift to be given to their friend, Z. Z is transgender, and while everyone refers to them as Z, it is not their legal name. This may result in uncertainty as to whom the testator intended the gift to be given to, and the executor of the estate may need to apply to the court to confirm who the intended beneficiary is.29
The testator may have done this intentionally to avoid deadnaming their friend. Deadnaming occurs when someone refers to a transgender person by their birth name, but not the name they go by presently. The birth name, or deadname, may or may not be the person’s legal name.30 Many transgender people have discomfort around the deadname, noting that hearing it can feel like a punch in the stomach or a slap in the face. The transgender community emphasizes the importance of not using a person’s deadname, as doing so is harmful and disrespectful.31 However, in the context of drafting a will, it is good practice to use an individual’s legal name so there is no uncertainty. For transgender and non-binary individuals, the will could mention both their legal name and their chosen name.32 In the example above, the testator could have written ‘to my friend Z (also known as Y)’ to avoid ambiguity. However, if this has not been done, there is concern as to how the courts will interpret a provision that misnames a transgender beneficiary, as there is no definitive outcome in Ontario legislation or case law.
Ontario Courts Should Consider Case Law from Other Jurisdictions
There is currently no case law on this specific concern originating from Ontario. However, case law from outside Ontario has been effective in resolving issues where there is a misdescription of an individual’s name. In the United Kingdom, there is a case known as Re Ofner,33 where the testator included a bequest in his will to his grandnephew, Robert Ofner. However, the testator did not have a grandnephew with that name, but he did have one named Richard Ofner. The Court considered evidence that demonstrated how the testator often referred to Richard as Robert. The Court held, notwithstanding the incorrect name in the will, Richard was to inherit the gift as it was clear that the testator intended for him to be the recipient.34
Furthermore, in Jamt Estate (Re), the testator instructed his lawyer to leave his entire estate to his nephew, Per Kare Jamt. However, the nephew’s name was actually Per Martin Jamt. The testator had accidentally confused the name of his nephew with the name of his brother. The Supreme Court of British Columbia concluded that the testator’s intentions were to leave his estate to Per Martin Jamt, and because the will failed to carry out his intention, the Court granted the rectification and declared Per Martin Jamt as the beneficiary.35
While the Wills, Estates and Succession Act – the statute governing succession law in British Columbia – grants the court broader remedial power from an accidental error than the SLRA does for Ontario courts 36, leaders in the estate law field note this solution is still possible in Ontario.37 As noted by Donnelly J. of the Ontario Court of Justice in National Trust v Northside United Church, “Misdescription, so commonplace in his will, will not defeat that intent. The Court’s responsibility is to give effect to the intention of the testator.”38 This can be seen in Lipson v Lipson where Justice Pattillo held that Ontario has the authority to delete or add words to a will by necessary implication, so long as the court is satisfied that: (a) it is apparent on the face of the will that there has been a mistake; (b) upon reading the will as a whole, the mistake does not support the testator’s intentions; (c) from reading the will, the testator’s intentions are so strongly expressed that, despite the mistake, no other conclusion could reasonably be drawn; and (d) the deletion or addition of words by the court give effect to the testator’s true intentions.39 While this case did not focus on a mistake in the beneficiary’s name, it could be persuasive to suggest the testator mistakenly omitted a transgender beneficiary’s legal name.
Based on the foregoing, as long as the name in the will is sufficiently clear as to whom it is referring, it is unlikely that a court would decide that any subsequent name changes of a transgender beneficiary would preclude that individual from inheriting under the will. However, this has not yet been established in case law, so the impact on the 2SLGBTQ+ community is uncertain.
Discriminatory Bequests in a Will
There is Little Recourse for 2SLGBTQ+ Individuals who face Discrimination in a Will
Many 2SLGBTQ+ individuals experience discrimination,40 and in the context of estate law, they may face discrimination in a family member’s estate solely because of their gender or sexual orientation. A key principle of Canadian common law is that individuals have the power to execute a will orchestrating how their estate is to be divided upon their death, subject to a few restrictions. One restriction is that the testator’s will cannot dispose of assets in a way that contravenes public policy.41
Public policy places a limit on testamentary freedom so that this freedom is not absolute.42 It was developed as a common law principle in the 15th century to protect marginalized populations and to prevent discrimination.43 The doctrine of public policy provides the courts with the authority to void a clause in a will that is discriminatory based on race, ethnicity, religion, sexual orientation, or gender, even though doing so may place a limit on an individual’s testamentary freedom.44 What the courts have considered to offend public policy is far from settled, as public policy is an ever-changing concept based on the morals and opinions of society at a given time.45
To truly support the 2SLGBTQ+ community, Ontario courts should rely on the public policy doctrine and not uphold bequests that discriminate against 2SLGBTQ+ individuals. For instance, 2SLGBTQ+ children may be disinherited or treated unequally in their parents’ will if their parents do not support their identity. However, the law in Ontario makes it very difficult for courts to remedy this for two reasons: (1) only dependants of the deceased can make a claim for support; and (2) courts rarely consider extrinsic evidence. The current law thus upholds the discriminatory nature of the will, leaving the 2SLGBTQ+ child with no course of action.
Only Dependants Can Bring a Claim
Firstly, Ontario law only allows dependants of the deceased to bring a claim for support from an estate. Under the SLRA, a dependant who has not been left an adequate bequest in the will of the deceased may commence an application asking the court to modify the bequest to ensure they receive adequate support.46 The SLRA provides details as to who is considered a dependant and what factors are to be considered in determining whether to grant a support claim.47 Under this statute, a dependant is someone who is related to the deceased by virtue of being their (a) spouse (including common-law spouse); (b) parent; (c) child; (d) sibling; (e) grandchild; or (f) grandparent, and is someone to whom the deceased was supporting financially up until their death.48 In determining the amount and duration of the support, if any, Ontario courts will consider several factors, including but not limited to: (a) contributions made by the dependant to the deceased’s well-being; (b) the dependant’s current assets; (c) the relationship between the deceased and the dependant; and (d) the dependant’s capacity to contribute to their own support.49 The court has broad discretion when determining whether to grant a claim for support and in determining the details of such support. Public policy supports this legislative limit on testamentary freedom as it relieves the burden from the government in having to provide financial support to these individuals, who otherwise may not be able to support themselves without the deceased’s assistance.50
However, someone who is financially independent from the deceased does not have access to this remedy. Consequently, if a transphobic or homophobic parent leaves a gift to their financially independent cisgender, heterosexual child, but leaves a lesser gift, or no gift at all, to their financially independent child who is a part of the 2SLGBTQ+ community – specifically because of this child’s identity – this child has no course of action to remedy the discriminatory nature of their parent’s will.
Extrinsic Evidence is Rarely Considered
Moreover, Ontario courts will not invalidate a provision in a will unless it is discriminatory on its face, as decided in Spence v BMO Trust Co. In this case, the testator explicitly disinherited his daughter by saying, “I specifically bequeath nothing to my daughter, [Verolin] as she has had no communication with me for several years and has shown no interest in me as her father.”51 Verolin challenged this on public policy grounds, explaining that her relationship with her father only became estranged after she became pregnant and her father learned that the child’s father was of a different race. Verolin claimed that the disinheritance was racially motivated and thus contrary to public policy. Both Verolin and a family friend filed affidavits attesting to this. The application judge was persuaded by this extrinsic evidence and set aside the entirety of the will for offending public policy on the grounds of race.52 However, this decision was overturned on appeal, with the Court noting that “as a general rule, extrinsic evidence of a testator’s intentions is not admissible when the testator’s will is clear and unambiguous on its face.”53 Thus, because the wording of the will clearly expressed that Verolin was disinherited because of her lack of communication with her father, the affidavit evidence was inadmissible. The Court found that because the wording did not violate public policy, the will should be upheld.54
Ontario Law Should be Modified to be Analogous to British Columbia Law
This problem of discriminatory wills is not prevalent across all of Canada. To ensure 2SLGBTQ+ persons who have faced discrimination in a will have a legal path to remedy the situation, Ontario law should be modified to parallel the law in British Columbia. British Columbia does not restrict making a claim against an estate to dependants of the deceased. In this province, spouses and children are able to bring a claim for support if they have not been left an adequate bequest, whether or not they were financially dependent on the deceased. The court has the discretion to vary the will to provide a just and equitable bequest to the claimant.55 Therefore, a financially independent adult child who has been discriminated against in their parents’ will is able to bring a claim, and the court will be able to remedy the situation.
In the British Columbia case Peden v Peden, Smith et al, the testator had three financially independent children and divided the residue of his estate into three equal shares. Two of his children each received one share outright, and the plaintiff child received a life interest in the final share. The plaintiff brought an application claiming his father failed to make an adequate bequest to him. The drafting lawyer testified that the testator had been upset that the plaintiff was gay and did not want him to be a beneficiary of the estate, but ultimately decided to gift a life interest to the plaintiff. The Court also heard how the plaintiff spent significant time and energy caring for his father while he was sick. In reaching their conclusion, the Court looked at all the evidence before them and decided to set aside the life interest as written in the will and give the gift to the plaintiff outright.56
Additionally, in Lam v Law, another case from British Columbia, a financially independent adult daughter was successful in bringing a claim for support against her mother’s estate. Her mother had left a large portion of her estate to her son and left very little to her daughter, and the daughter alleged this was a result of her mother’s discriminatory belief that only sons should inherit their parents’ estates.57 In reaching their conclusion, the Court looked beyond the strict wording of the mother’s will. The Court considered evidence from several witnesses about the mother’s misogynistic beliefs,58 noting that “the actual intentions and reasons that the testator expressed regarding the distribution of her assets and estate are important considerations.”59 This view moves beyond the strict view of the Ontario courts, which is to ascertain the testator’s intentions from the wording of the will. The Court held that the mother’s view that only sons should inherit from their parents’ estate did not align with the standard of a reasonable testator or with current social norms, and as such, ordered an increase in the daughter’s share of the estate.60
Supporters of the current Ontario legislative scheme note that the intent behind excluding extrinsic evidence is so the courts can give effect to the testator’s wishes from the wording of the will. The Ontario Court of Appeal has warned that allowing extrinsic evidence to be admitted when the words of the will are clear and unambiguous would create an increase in litigation where any unsatisfied beneficiary could bring a claim to suggest the testator had different intentions than what they expressed in the will.61 While this is a valid concern, it is not supported by evidence. Jurisdictions that permit adult children to challenge their parents’ will have rigid guidelines to prevent frivolous claims. Moreover, in New Brunswick and Saskatchewan, where these types of claims are allowed, they are not seen frequently.62 Thus, the practical implication of the Ontario law is that any individual can be disinherited or discriminated against in a will, as long as the testator does not explicitly expose their prejudice. In practice, a transphobic or homophobic parent may disinherit their child solely because their child is a part of the 2SLGBTQ+ community, so long as nothing appears prejudicial on the face of their will.
Accordingly, to avoid upholding wills that discriminate against 2SLGBTQ+ individuals, Ontario should implement legislation analogous to British Columbia by, (a) allowing financially independent adult children to make a support claim against the estate; and (b) allowing extrinsic evidence to be admitted to assess the testator’s true intentions. Doing so would better align estate law with the principles of public policy and prevent the perpetuation of prejudicial bequests towards members of the 2SLGBTQ+ community.
Misgendering Transgender Individuals
The Law is Unclear when a Beneficiary is Misgendered
Similar to misnaming, as discussed above, a beneficiary may be misgendered in a will. Misgendering occurs when someone uses the incorrect pronouns or gendered term to refer to another person.63 This may occur within class gifts. A concern may arise if the testator created a class gift using gendered terms. The wording of a class gift allows for new members to join or previous members to leave the group after the date the testator executed their will. Thus, the number of members of a class gift is uncertain. The date the class closes is typically the date of the testator’s death.64 A problem arises if a beneficiary who belonged to the gendered class at the date of execution subsequently comes out as transgender before the testator’s death. For example, a testator may make a specific bequest to be given to all their grandsons. At the date of execution, the testator had a grandson, Q. However, at some point before the testator’s death, Q may come out as a transgender woman or as non-binary, thus no longer meeting the definition of ‘grandson’. The question arises as to whether Q should still form part of the class.
This can also occur if the testator mentions a beneficiary by their relation, but not by name, such as a reference to their ‘eldest daughter’. A question arises as to whom the provision should apply to if the testator’s eldest daughter at the time of execution comes out as a transgender man or as non-binary, or if another child of the testator comes out as a transgender woman and subsequently becoming the eldest daughter.
These ambiguities may result in increased time spent before the estate can be distributed, as the estate trustee will likely have to bring an application to the court seeking an order on how this provision should be interpreted. This also results in increased legal fees which eat into the residue of the estate.65 Ultimately, the law at this time is unclear on how transgender beneficiaries are to be considered in cases like this.
The SLRA should be Amended to Account for These Situations
The best way to resolve the uncertainty that arises when considering whether a gendered provision should include a transgender beneficiary is for the legislation to explicitly outline how this situation should be interpreted. The SLRA should be amended so that it is clear the misgendering of a transgender individual will not prevent that person from inheriting a gift that referred to them by their previous gender, unless a contrary intention is shown in the will. A provision as such would support the common law principle that the primary purpose of will interpretation is to ascertain the true intention of the testator.66
In the class gift example above, the testator may have drafted the will this way to ensure that any future grandsons they had were accounted for in the will, not considering the possibility of one of the grandsons coming out as transgender. Thus, it is very possible the testator did not intend for this grandchild to be left out of the class gift. Moreover, if a testator included a clause that referred to their eldest daughter, they probably had a specific individual in mind. It is unlikely their wording was intentional to account for possibility of one of their children subsequently coming out as transgender after the execution of their will. The proposed amendment to the SLRA would account for both these situations and ensure that the testator’s true intentions are upheld. This would support the 2SLGBTQ+ community in ensuring they do not forfeit a potential inheritance when they begin their transition.
This situation has been considered in the United Kingdom’s Gender Recognition Act 2004, but its solution is less than satisfactory. Section 15 declares that if someone has changed their gender, this will “not affect the disposal or devolution of property under a will or other instrument” so long as the document was created before this statute came into effect.67 For greater clarity, the United Kingdom Government specifies that if the will refers to the ‘eldest daughter’, and the testator’s child who was assigned male at birth becomes the eldest daughter after they come out, the provision will now apply to this individual, instead of the eldest daughter as at the date the will was executed.68
While it is admirable that the United Kingdom is conscious of affirming an individual’s current gender, this solution is not ideal, as it does not consider the true intentions of the testator, and its practical implications mean that anyone who wishes to come out as transgender would essentially be forfeiting any gift that referred to them as their birth gender. Additionally, the impact of this provision means that non-binary individuals would almost always be excluded, as any gendered language in a will would no longer apply to them at all. However, despite this provision, if a transgender person in the United Kingdom would have inherited something in a will but for their transition, they can apply to the courts to have an order for the gift to be given to them.69 The proposed changes to the SLRA mentioned above would avoid this unnecessary court application by ensuring transgender and non-binary individuals are recognized as beneficiaries from the beginning. Unlike the United Kingdom’s law, the proposed amendment upholds the intentions of the testator and supports the 2SLGBTQ+ community throughout a person’s transition.
Conclusion
This paper outlined four ways in which estate law in Ontario disadvantages the 2SLGBTQ+ community and provided a potential remedy for each. The paper began by looking at how common-law partners are still excluded from inheriting if their deceased spouse died intestate. The best solution would be for the SLRA to be amended to broaden the definition of spouse to include common-law couples. The next problem considered how there is no case law or legislation that considers the effects of a testamentary gift when the beneficiary has been deadnamed in the will, which poses uncertainty for the transgender community. The best way to account for this, if it arises, would be for the courts to consider case law from other jurisdictions that deal with misnaming an individual.
This was followed by discussing how a financially independent child who has been discriminated against in their parents’ will has little recourse to address the discrimination. To remedy this, the SLRA should be amended to mirror the legislation in British Columbia, which gives courts broader jurisdiction in considering claims where there was discrimination in the will. The paper wrapped up by analyzing the ambiguity that results from gendered provisions in a will, and how there is no case law to suggest how a court would interpret such issue. To remove this uncertainty, the SLRA should be amended. Doing so would provide clarity for the transgender community and ensure the testator’s intentions are upheld.
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