 and ye shall be heard. God save the dean. Good evening, everybody. My name is Michael de Turbitt. I'm the associate dean academic of the Schulich School of Law. And on behalf of Dean Cameron and the entire faculty, I'd like to welcome you all to the 2016 Smith-Schild Mood. A special thank you, of course, to our bench, the Honorable Justice Cindy Bourgeois, the Nova Scotia Court of Appeal, the Honorable Justice James Chitman from the Supreme Court of Nova Scotia, and Mr. Darren Baxter, QC, president of the Nova Scotia Barrister Society, and welcome, of course, as well to our participants, their family, and friends. The Smith-Schild is our most prestigious mooting event here at the Law School. It began in 1927 and has become one of the highlights of the academic year here at the Schulich School of Law. Past participants have included some names that many of you law students may recognize, Bill Charles, Bruce Archibald, Wayne McKay, Phil Saunders, Steve Coughlin, Elizabeth Hughes, as well as many other well-known lawyers and judges. I'd like to thank Stuart McKelvie for funding this annual event and welcome this year's representative, Andrew Frazier. Thank you, Andrew. And I'd also like to thank Professor Jamie Baxter for preparing this year's problem and my assistant, Tatiana Nekliadova, for her hard work in organizing everything for the event today. I'm told to let you know that this event will be audiotaped and videotaped. Also, please turn off your phones or any other electronic device that my ring, puzzle, whistle will make any other sort of noise. Actually, that reminds me. I actually did forget to do this. Following the event, photos are going to be taken of the judges and the mooters, and a reception will be held in the faculty lounge up on the third floor to which everybody here is invited. The case being argued today, Spence versus BMO Trust Company is an interesting one that Professor Baxter has provided, and it raises challenging questions regarding public policy limits on testamentary freedom. To argue the case today, we have for the appellant Spence, Nina Boots, and Nick Hooper for the respondent BMO Trust Company, Vin Mishra, and Lisa Delaney. So with that, thank you all for being here and enjoy the performance of these talented mooters. Good evening, my lords and my lady. This is the matter of Spence and Bank of Montreal Trust Company. My name is Nina Boots, and I'm appearing as counsel for the appellant. I am joined by my colleague, Nicholas Hooper. My friends, Vin Mishra and Lisa Delaney, represent the respondent Bank of Montreal. The facts of this matter are set out at page four of our factum, unless this honorable court should like me to recite the facts, and I propose to proceed directly to argument. The heart of this case concerns the intuitive notion that racism is no less objectionable when it is less overt. Racial equality is an important aspect of testament of Canada's public policy, and public policy is an important exception to testamentary freedom. The will in question is neutral and unambiguous on its face, yet, in light of uncontested, reliable, and relevant extrinsic evidence, a discriminatory motive has become apparent. To deny this evidence would be to deny the appellant the opportunity to prove that the will in question violates public policy. This would run contrary to the purpose of section 31 of the Testators Family Maintenance Act, which reads that, when deciding whether to alter the terms of a will, the court has the power to take into all relevant circumstances of the case. On application, Justice Gilmore understood the affidavit evidence proving that the testator's motive for discriminating and disinheriting his daughter was due to the fact that she gave birth to a biracial son to be a relevant circumstance of the case. If this court values the appellant's right to inform the adjudication of their public policy claim, the extrinsic evidence must be admitted. I'll counsel you that Justice Gilmore was correct in law to allow Verlan Spence's affidavit her evidence into this matter. I do. Due to the corroborating evidence of image and parchment are witness. I do discuss the reliability and credibility of image and parchment, the relevance of her evidence, and the fact that no exclusionary rule applies this evidence. And I think in law this does support the fact that image and parchment corroborates Verlan Spence. So I know you're focusing on the parchment evidence, but what is it, I thought in the next breath in your fact, and you're really saying we might just as well discount the Spence evidence that it's of no real value here, we don't need it. So was it correct in law to be admitted into evidence? Well, I think that they do need it, it is relevant, but Justice Gilmore placed a lot less weight on Verlan Spence's evidence, although we still need to have it admitted to be able to argue the case at hand. Verlan Spence is our plaintiff, and if we don't, we don't have a case if we don't admit her evidence. And I do realize there are many issues with this, considering the reliability at the fact that she's a disappointed beneficiary, but that is why we brought forth image and parchment's affidavit as well. A lot of the things that Verlan Spence says are directly corroborated by image and parchment. There are several things in Verlan's affidavit that we do rely on, but these are corroborated by Verlan Spence. So are you, what say you about the floodgates argument that we're gonna get into trials that won't last days, but really weeks because of all this extrinsic evidence that you say needs to be admitted? Well, there are several things that apply to this evidence in particular that I think do not create uncertainty or will increase litigation, specifically the fact that there's a public policy claim here. So the prerequisites for this extrinsic evidence to be allowed are a public policy claim, the fact that the evidence is credible, reliable, relevant, and uncontested in this case. And these are a lot of factors that evidence has to meet. And in this case, we have very, this evidence clearly meets all of these standards. So I understand the worry that floodgates, this has been an issue in a state's law for a long time. Although with changing society, we must respect the fact that public policy are situations where we do need to perhaps, a state's law might become more confusing, but this is perhaps something that's worth that. Thank you, council. Evidence is admissible if it is relevant and not subject to exclusion under law or policy. The affidavit evidence brought forth by Imogen Parchment and Marilyn Spence meets his criteria because Imogen Parchment is a reliable, incredible witness, the evidence is relevant to an issue before the court, and no exclusionary rules apply. In terms of credibility, Imogen Parchment is a neutral, independent third party with no stake in the proceedings. She has no motive to lie and has provided consistent evidence of the testator's character spanning 35 years. The respondent did not cross-examine Parchment at trial, nor did they bring any evidence to disprove or discredit her. Thus, Imogen's Parchment affidavit is credible, reliable, and properly corroborates that of the applicant. Council, didn't the best evidence of Mr. Spence's intent and motive in drafting the will, in the way that he chose to draft it, die with him? Isn't that, in fact, isn't Mr. Spence the best affiant of what he intended and what his motive was? Indeed, but if we follow that principle alone, we would never be able to contest a will ever because in these cases, the best evidence is unfortunately deceased. So yes, in clause 5H of the will, he did give us a motive. However, extrinsic evidence has been brought forward that directly contradicts this clause and that is evidence of the surrounding circumstances which we've consistently admitted in Wills and Estates case law, and therefore, this is the circumstance where we're varying the will or at least admitting the evidence so that my colleague has the opportunity to prove that the will should be varied, must be admitted. Turning to relevance, the extrinsic evidence speaks to the testator's motive in disinheriting his daughter. Courts have consistently recognized that the motive or reason behind a bequest is a relevant consideration when determining public policy. In his concurring reasons in Canada Trust Co, Tarnopolski observed that several circumstances exist where evidence of motive in, sorry, evidence of intent and motive is required to determine this issue. Specifically, he refers to trusts with language restrictions. Although a language requirement is unlikely to present a policy problem, it would still be subject to an analysis of its context, purpose, and effect due to this reason. Framson Estate and McConnell Estate draw a parallel to trust with religion-based requirements. These decisions hinged on the court finding that it was not a discriminatory motive that caused the reason for the trust to be developed, but the fact that the testator chose to benefit students that shared his religion. Evidence is thus sometimes necessary to determine whether a trust has a distasteful purpose or effect. If the reason behind a restriction is a relevant consideration in public policy, then evidence that speaks to this reason must therefore also be relevant. In McCorkle Estate, there was no question as to the admissibility of the extrinsic evidence that the beneficiary in question was a white supremacist organization. On its face, that will was neutral as well, and yet the court unreservedly relied on extrinsic evidence considering the neutrality of the will, this was the only way to prove public policy. The same can be said in this case with Parchman's affidavit. The court cannot properly resolve the public policy issue without it as no evidence was brought by the respondents at trial. My friend suggests at page 13 of his factum that the evidence constitutes hearsay. In response to this, I submit that the law of evidence is a living tree, and the principled approach suggests that if hearsay is both necessarily and reliable and relevant, it is admissible. As discussed, Parchman is a reliable witness and her evidence is necessary to properly adjudicate the public policy issue. There is no better existing evidence, and not only will it advance the inquiry, but it is the only means of doing so. Also, I need not remind the court that the standards of the rule of evidence shall be more relaxed in civil law. Thus, the evidence is not only an issue before the court, but it is the issue before the court. The last qualification for admissibility is that no exclusionary rule of law or policy should apply. The respondent invokes the exclusionary rule from Robinson, the third party evidence that speaks to a testator's intent is inadmissible. This rule is clearly aimed at avoiding the dangers of allowing third party evidence that challenges what a testator intended to do with their property after they have deceased. This is not fair, as we pointed out. However, a proper reading of Robinson reveals this case has no application to this situation, as our evidence does not speak to intent, but rather to motive. There is no debate as to what Mr. Spence intended to do with his estate. The will is clear, Parchman Safa David is consistent with it. He intended to disinherit Verlin and benefit his other daughter Donna. The appellant does not rely on any promises that the deceased may have made to his daughter during his lifetime, and nor do we attempt to supplant his stated intention with an alternative. Thus, the dangers that underlie this exclusionary rule do not arise. So Ms. Butts, if you look at page three, paragraph three of the respondent's factum, and you would understand and they make this pitch throughout, and I'll just read moreover, accepting a public policy intervention in this case would result in illegal inconsistency. Conduct that is permissible during the testator's life would be curtailed upon his death. So aren't you really asking this court to go well beyond the obviously the four corners of the will, and to start looking at now what Parchman had to say, what the beneficiary herself had to say about this alleged acrimonious relationship based on the birth of the bi-racial, their bi-racial son? Yes. I think in cases, I submit in cases of public policy that a whole different set of rules should apply. At least we should alter the rules of evidence to kind of go with the times I would say. So yes, we are going to be accepting evidence here that is outside of the four corners of the will, but I don't think it is fair to say that this, we are basing the decision of this case on offhand comments a testator may have made to some people during his lifetime. Mr. Spence was quite, quite clear for about, ever since this child was born, that he did not accept this, and he was very clear about this to most people who met him. We have several affidavits here. Imogen Parchman has given consistent evidence of him repeatedly saying that he did not want this child to receive a portion of his estate, but that reason clearly violates public policy. I think that is common knowledge. Right now we have to determine if we would allow the appellant to even have the opportunity to prove that this is the case. This is a question of evidence and admitting evidence, and without this evidence, there's nothing for, there's no opportunity for our plaintiff here to even prove that she and her son were wronged. So had there been gifting done in one's lifetime, the law would be nothing we could do about it, but here's our chance. Is that where we are? Can you rephrase that? So if there had been a gift early on, a gift previous to the death, is that acceptable, and is there nothing to do about that, but whereas in this scenario there is. It's a simple, that inconsistency doesn't matter. Well, I submit the consequences of, if Mr. Spence had earlier on in his life decided to gift his money to Donna's two children and not to Maryland's, I think that's what you're getting to. You could, the issue there, the consequences are the same, sorry, the public policy violation is the same. If whether or not you're giving Christmas presents to one child rather than another based on the fact that one child is birational and the other is not, the same kind of immorality lies behind that. However, in those circumstances, there isn't a body of law, case law, about kind of presents. There is about wills and estates, and because we're going through, I know my colleague makes this argument, because we're going through the court, because you have to get this, a will kind of certified through the legal process. It opens itself up to criticism, I think, where private acts between two individuals that the law is not involved in at all. It's not really the court's place to step in. Maryland could bring that claim, it would probably be unsuccessful. However, in this case, this is a will. Thank you. Just to follow up on that, Ms. Butts. So you're suggesting because of the probate process? Yes, sir. That's what changes on death as opposed to intervival store in life. But what if it was not necessary to probate the will? What if the trustee determined not to probate the will? The trustee does not have to probate the will in only certain circumstances, perhaps for the transfer of certain assets. But if the trustee made that determination, not to probate the will, does that change anything? Because at this point, the probate court is not involved. I think that these questions are getting to the fact that public policy and estates law are a very new kind of combination of two different issues. A lot of these questions haven't been resolved in case law. And here we have an opportunity to kind of set forth the beginning precedent that draws public policy into more of an importance when it comes to private beneficiaries and bequests. So in terms of the probate phase, I mean, if it didn't get brought through pro-brite, then I think the fact whether it violates public policy could potentially be argued a different way. However, I don't think that affects the evidence issue. I don't think that affects the admission of evidence issue here. What happened is the will went to probate, and now we're trying to argue that any evidence at all can be brought forth here. This is the only piece of evidence before the court, at all, from both sides. So without this, there's no way for Maryland to even have the opportunity to prove that public policy was violated. Estates law also makes clear that there are instances where our society has decided to allow extrinsic evidence to remedy a misconduct or a wrongdoing. In these issues, in these cases, the key issue is not about will interpretation, but about determining if a wrongdoing took place. In cases of fraud and undue influence, the applicant must prove that the will was a product of coercion. This requires extrinsic evidence, as a will on its face will not aid in determining if coercion or misconduct took place. In Granda, the court stated that where suspicious circumstances exist, the rebuttable presumption that a testator knew and approved of the contents of the will no longer applies. If courts are prepared to entertain extrinsic evidence to write the wrong of coercion, what reason could rationalize excluding it where public policy is concerned? We did discuss the floodgates and uncertainty argument, although I will put forth a couple more submissions on that point. Ms. Butts, just before you get there, isn't there an important distinction in the case of coercion? Because coercion means that what was written in an executed will really was not the intention or the wish of the testator. Whereas here we're talking about a clear unambiguous statement, which you, your client, has acknowledged is not ambiguous. So is that not an inherent distinction between those two situations? Factually the situations are very different, although I think they're very comparable on the admission of extrinsic evidence point because the courts in these cases consistently say this is a case of a wrongdoing. This is why the court needs to step in. And if the ratio of those cases is based on that specific factor, that a hint of a wrongdoing took place and therefore we must analyze this closer, we're gonna allow evidence, we wouldn't normally allow to fix this problem, to answer this question. But you'd also acknowledge, would you not counsel that the wrongdoer is also different in those scenarios? Here you're alleging that Mr. Spence was the wrongdoer, he was the racist, whereas in a case of coercion, it's the person who is wrongfully exerting their will over the person who is making their testamentary dispositions. Does that not also distinguish the circumstances? In this case, Mr. Spence was the one who was making actions based on racist intent and that violates public policy. This is a question that has potentially has harm to our society. One child was disadvantaged in his disinheritance because he was biracial. His two cousins are not and they received their portion of the estate. That violates public policy and I think when something is brought into the public policy realm, we have to realize that whether it was the testator who was wronged or did the wrong either way, the same issues apply, someone was harmed and the reason he was harmed falls under something that violates Canada's public policy. Ms. Spence, I just want to follow up on the someone was harmed. That presupposes that there is an entitlement and you also mentioned the three one of the Testators Family Maintenance Act where the court can look at all the circumstances and the way I always understood that, it was necessary to establish that the party was a dependent and that inadequate provision was provided and I didn't see any evidence of that here. Are you arguing that the daughter or the grandchild are dependents? No, I am not. Maryland brought her claim successfully under section three one and that was decided at probate. So I don't think that's on issue in this appeal whether or not she establishes section three one of the Testators Family Maintenance Act. I merely bring up that quote specifically to say that that section which she was approved to be allowed to bring this case under specifically says that all surrounding circumstances are allowed to be considered by the court. Thank you. To conclude, the court of appeal aired an excluding extrinsic evidence that the testators decision to disinherit his daughter and grandson was motivated by racism. As established, the evidence is properly admissible. It is credible, reliable and relevant to an issue before the court. No exclusionary rule applies. Evidence of motive is distinguishable from evidence of intent and thus the exclusionary rule does not apply. Case law demonstrates that in cases of misconduct and wrongdoing, evidence of surrounding circumstances is consistently admitted. The appellant does not argue a theory of everything with respect to admission of intention evidence and motive evidence and any sort of extrinsic evidence. Rather, it is our position that Canadian legislatures and courts permit evidence of motive when it is necessary to properly adjudicate a public policy claim. Testators must not be allowed to hide behind neutral wills. And to say that in determining the public policy issue, one should only look to the will is to prefer form over substance and this is not what public policy is about. Thus, the court should allow admission of the extrinsic evidence and provide the appellant with the opportunity to prove that the will does in fact violate public policy. I therefore respectfully submit that the court of appeal was incorrect in excluding the extrinsic evidence and I would ask you to substitute that finding for one of admission. Thank you. Thank you, Ms. Fox. Good evening, my lady and my lords. My name is Nicholas Hooper and I'm appearing as counsel for the appellant. I will discuss the issue of public policy. While there are a few areas of the law that evoke the same emotive response as that surrounding wills, this dispute rests on two uncontroversial principles. First, the legal owner of property holds, among other things, the fundamental right to distribute their assets upon death. This has been conceptualized as the legal promotion of individual autonomy and property ownership as a social good. It is in short, a virtually unjustifiably absolute right. But secondly and equally undisputably, the owner of property cannot, even upon death, dispose of their assets in a manner that causes significant harm to society. There is of course an inherent degree of subjectivity in determining what socially injurious conduct looks like. But the jurisprudence surrounding public policy clearly delineates the appropriate scope for these two sometimes competing precepts. I am mindful of course that there is no binding precedent on this court. However, the available case law does provide a comprehensive framework for determining the appropriate scope of testamentary freedom. I submit that it provides a reason to starting point. The introductory premise then is set out by the Supreme Court of Canada in the Titeran Estate case. Basically, a testator enjoys substantial dispositional freedom, which should be understood in light of its historical evolution. This doctrine began during the apex of 19th century individualism and while it remains a central part of the law of wills, it has also undergone a shift concurrent with our national values. This isn't to suggest that it ever reigned without limit. For example, a 1936 note in the Columbia Law Review advised that testators could impose any condition they like so long as it does not contravene either the law or public policy. Now, public policy of course is somewhat amorphous. Janet Walker in Hallsbury's Laws of Canada suggests that it's the distillation of our entire body of case law coupled with local senses of justice, fairness, and social well-being. And yet, in this ambiguity, I submit it finds its doctrinal strength. Public policy is an inherently progressive force. It synthesizes our national values and then prohibits actions that seriously threaten them. It finds its basis in Canadian law in the early Supreme Court decision of Miller estate. After reviewing the relevant House of Lords jurisprudence, the court held that by its very nature, public policy impinges on the private sphere. And this is because it's conceptualized as the assertion of quote paramount values which override an otherwise valid private interest. In a series of influential 19th century cases, this was held to be an appropriate and necessary role for the courts because it's not the undemocratic speculation as to what's best for our communities, but rather the application of legal principles themselves. Ultimately, a two-step test is mandated. First, the prohibition needs to be engaged in the interests of society as a whole. And secondly, the harm contemplated must be quote substantially incontestable and not dependent upon the idiosyncratic inferences of a few judicial minds. Now such a clear test and high threshold effectively rebuts many of the concerns addressed toward the application of public policy. My friends, for example, submit that applying public policy in the context of private bequests would swing open the ubiquitous litigation floodgates. But when its application depends on substantial and incontestable harm to society as a whole, I submit that there is no principled reason to immunize any specific area of private transaction. Now, Mr. Hooper, I've reviewed this will and I didn't see any, it's for, the beneficiaries are all family members, are they not? Yes, my Lord. All right, so we're talking and I know you're gonna get to cases soon because the background is helpful, but once you get into the cases, virtually all of your cases deal with beneficiaries who were in the public millions. So I'm having trouble grappling with this notion that in the private context, all of this is applicable. And I know you're gonna talk to us about the Charter and Douglas, the human right side, but what's with the pages about the Charter? I mean, is the Charter really, are you submitting to this court that the Charter has application here? My Lord, I would submit that it could. I understand it's a novel argument, but the Canadian law of wills, which the Court of Appeal relied upon heavily, states, quote, the grant of probate, it might be argued, is a state or governmental action. Accordingly, the combined effect of sections seven and 15 prevent the grant of probate of a will that contains a potentially discriminatory bequest. I would also direct the court's attention to a recent case called McLaughlin estate where the court held that the probated will is a public document. So it operates in REM and can affect the rights of non-parties and as well the resealed probate process in the court's words is to participate in a transnational system approximating our order of laws. So I understand that this is certainly a novel argument, but I believe that this court, not being bound by precedent, has the unique opportunity to consider the predictability that this would import into this area of the law. Mr. Hooper, I wanna pick up on an issue that Justice Baxter raised a few moments ago with your co-counsel with respect to the fact that not all wills are required to be probated. Yes. So if we accept your argument that the probating of a will takes a private action into the public domain, government action has now been brought into play and therefore charter considerations come into play. Does that not then create a two-tiered system where testators who bequeath their property in a manner that does not require probating can do so in a way that does not attract charter scrutiny, whereas those that go through the probating process does. Does the charter permit two-tiered systems of justice in our country? And secondly, would that not also encourage individuals who had nefarious purposes and wanting to act contrary to the charter simply to arrange their affairs in a way that would not subject themselves to the probate court? So what do you say about the fact that if your theory is correct that it triggers the charter, it triggers the charter for some, but not all? So how does that fit into our view of the charter being applicable for all? Right, I think that's an important question. Thank you, my lady. I would submit that a more broad view might be necessary because I agree that it's problematic to submit some sort of two-tiered constitutional system. I would suggest that the wills exist in kind of a unique state. I know that some of the academic commentary has suggested that they're quite unique given their role as sort of a plan that is then enforced or at least enforceable by the courts. So I would submit that if the probate grant sort of immunizes then problematic wills, I would suggest that perhaps the court could read this more broadly and impose at least charter principles on the notion that the state will at the very least bring its coercive force into line with this plan that the testator is no longer around to enforce. It does seem to my mind to import a degree of state control over a will whether or not it's probated. So Mr. Hooper, just continuing that line with that, would your reasoning also apply to what we commonly refer to as an alter ego trust during the testator's lifetime? The testator puts assets into a trust and those assets are no longer part of his or her estate. So when he or she passes on, the assets are still in the trust, the trust has changed, but now the terms of the trust would have similar provisions that we're talking about here. So now we're talking about a trust, we're not even talking about a will, it's another way of making a testamentary disposition so to speak. Would the charter be applicable to a private trust? Well, my lord, I think that it could be to the extent that the Fox estate case analogizes between wills and trustees in that kind of context. I would also submit to the extent that the court declines to exercise its power to subject private requests to charter scrutiny. I don't think there's any reasonable debate about the interplay between charter principles and the common law. And I understand that there are limits on such a power. Obviously courts shouldn't strike down laws based on idiosyncratic distaste, but in an area where we're applying public policy, we have an adaptable sort of doctrine at play here. And so I would submit that this allows the court to bring predictability into the application of public policy. It would widen it admittedly, but I think that to the extent that our legal institutions become implicit or complicit rather in effecting these sorts of socially harmful dispositions, I submit that the charter should apply and in the alternative the charter principles should step in to void any such dispositions. I'm glad you raised the Fox case because I know you're familiar with that judgment. And if you turn to paragraph 20, and I just refer you to this quotation, it is of course a given that a person is entitled to dispose of property by will in any fashion that he or she may wish. The exercise of a testator's right of disposition is not subject to supervision by the court. So that aspect of Fox, I'm sure you're going to distinguish for us, Mr. Cooper. Yes, my lord. To the extent that Fox did ultimately hold that the my understanding or my reading of that case is that the trustee was not permitted to exercise their discretion in a manner that contravened public policy, but I submit that the court aired in suggesting that it was different in the context of a private bequest. In what way did it air? I mean, this is in keeping with your overall theme, but is there something in the specific you want to refer me to? Sure. I would refer you to the old English proposition that one cannot compel their successor to do that which is against the public good. Here you're going to the old English. I thought you were going to go to the charter again. But that's okay. Yeah, I would hate to overdo it, my lord. Oh no. No, we're all for overdoing it on this bench. So I think the analogy used in the old English case is actually a little bit helpful. The name escapes me and it's quite old, but the notion was that you could buy a plot of land and decline to till it, I guess, is the agricultural notion during your lifetime, but it does contravene public policy to then will that it can never be put to productive use. So, and I think that it's worth noting that, to my mind, a test date or discriminating is the worst kind of discrimination because there's certainly no chance of reasoning with that party any longer. Thank you. Thank you. That's helpful. So it is well settled that racial discrimination offends public policy in Canada, but it is important to be precise about our terminology. Certainly this isn't about bare differentiation and the leading case law imports a uniform focus on equality of dignity. The Canada trust case sort of exemplifies the common sort of trope in this area of the law and judicial engagements with equality. It looks in the absence of technical applicability of human rights law to the principles that underlie it. So with this in mind, I would submit that courts in this province should affirm the principle that everyone is free and equal in rights and dignity to use the language of section 2D, and surely that is uncontroversial, but I think there's been an unfortunate trend toward inconsistent application in the area of wills. Accordingly, it's useful to look at the discrete cases the Court of Appeal used to uphold Mr. Spence's bequest. So first, the Court of Appeal invoked the tatter in a state case, which is, of course, an undisputed authority on dependence relief in the statutory context, but that case does not presume to speak to public policy. I submit that the provision at issue there in the wills variation act certainly exemplifies our willingness to limit testamentary autonomy, but it certainly isn't determinative on the common law application of this doctrine. Otherwise, the Court's assertion that testamentary freedom is limited only to the extent stipulated in the legislation is manifestly false. And so by ignoring this context and applying dependence relief as though it's subsumed to this common law doctrine, I submit that the Court of Appeal made a clear error of law. Shortly thereafter, they draw on the McCorkle estate decision, which has been conceptualized as extending the reach of public policy. Now, the Court of Appeal was concerned by the lack of conditions or stipulations on Mr. Spence's bequest, and so this case is particularly instructive. Mr. McCorkle simply willed, quote, the residue of my estate to the National Alliance, end quote. Despite this, the Court struck down the unconditional bequest on the grounds that it promoted hatred given that group's well-known white supremacist rhetoric. Unfortunately, the Court of Appeal misreads that decision as anomalous with the settled case law, and in doing so ignores its principled basis for applying public policy to a discrete set of facts. In fact, Mr. Hooper, at paragraph 61 of your factum, you wrote, you asserted, Council, that the Court of Appeal's treatment of McCorkle was misleading. Yes, my lady. Did you intend to suggest to this Court that the learned judges of the Nova Scotia Court of Appeal were purposely misleading in terms of their reference to the law? Before you answer that, I just wanna say that Justice Alf is a good friend of mine. Well, I certainly apologize for the ambiguity of my language, my lady. I simply meant that it was misleading in its application of the academic commentary, however well-intentioned. Simply, the fact that the Court of Appeal looked at Professor Bruce Ziff's article on the subject and concluded on that basis that there was academic disagreement with the way that McCorkle has extended the reach of public policy. And he ultimately concludes, as I said out in our factum, that he agrees that the purpose of public policy was furthered in the McCorkle case. Ultimately, I submit that this is the purpose, it's essential not to lose sight of, by arbitrarily constraining the textual characteristics that can trigger a public policy review. I think on a principled level, this is what McCorkle stands for, that the social harm of discrimination isn't mitigated when the dispositive language is superficially inoffensive. So it doesn't have to rise to this level of a criminal offense, which is what, of course, they hit in that case. Right. So just help us along with that, though, because we've got admittedly a quite decidedly different situation here with some might regard as being not in any way on the facts analogous to a white supremacist group that work here. Right, absolutely, my lady. Well, I think that what McCorkle is ultimately saying is that the purpose is determinative rather than the textual characteristics. So the criminal code provisions were certainly relevant to that discussion, but you'll remember that the court ultimately cites the Andrews case from the Supreme Court in 1990 saying that there is an insidious social effect to the promotion of hatred. So I would submit to the court that the criminal code provisions were helpful in elucidating that this harm certainly does exist, but to the extent that public policy was applied, I submit that the common law rather than the criminal code determined that question. Ultimately, this appeal will render a final decision on a novel point of law. The courts have never before been confronted with such inoffensive prose and concurrent discriminatory sentiment. The court of appeal was adamant that this is not a will's construction case, and therefore made, I submit, an unjustified assumption that meaning can only come from the technical words of disbursement. The American scholar, David Horton, makes an interesting point when he says that testators aren't simply distributing their assets when they die, they're also making a statement. He recounts an anecdote from a probate judge who regularly adjudicates bitter disputes with very little, financially speaking, at stake. And he suggests that this isn't about the monetary value of the assets at play, but rather parties are coming to court to contest the message encoded in the testamentary scheme. I submit that textual intent is something of a useful fiction. Certainly, wills are personal documents, but they depend for their efficacy on technical and impersonal language. Generally speaking, a lawyer drafts a will and uses their skill to use formulaic language and affect the testator's intent. Now, certainly, personal meaning can signify from within the text story, but I submit that its primary mode of expression is consequential. Indeed, if social harm resided only in the words of the bequest, public policy would be largely useless. In this context, courts aren't constraining the expression of hateful ideas. The recitals like those in Canada Trust are more public for their judicial attention. Instead, this is about our collective refusal not to enforce dispositions that erode our national values. Now, this is limited by the test in Miller, but should not be limited further by the means used to affect testamentary discrimination. I submit that the Court of Appeal aired in their narrow application of public policy. It is in the behavior and effect that this clause is repugnant, and it is difficult to imagine a more clear example of the discrimination that public policy exists to refute. Thank you. Good evening, my lady, my lords. My name is Vinayak Mishra, and together with my co-counsel, Lisa Delaney, we represent the respondents. This case is about testamentary freedom, where the intent of a will is clear and lawful on its face. It would be unjust for potential beneficiaries to defeat the intent of the will by asserting a contrary intention. Where a gift is lawful in life, it would be inconsistent if that gift was unlawful in death. My lady, my lords, this case is not about Mr. Spence or Mr. Spence's character. It's about the right of all Canadians to devise their property as they so choose, and with that in mind, there are two issues on appeal. Firstly, at the Nova Scotia Court of Appeal was correct in excluding extrinsic evidence that the testator's decision was motivated by racism. The second, that the Nova Scotia Court of Appeal was correct in upholding the testamentary freedom of the testator and refusing to set aside the will. I will address the first, and my co-counsel will address the second. My submissions begin on page eight of the respondents' factum at paragraph 20. Extrinsic evidence of direct intent of a testator should not be admissible where it is contrary to the express words of the will, simply because the extrinsic evidence is not reliable and it is not credible. Well, with that much said, what do you say in the main about section 31 of the Act, which, as you're well aware, says courts have the power to, I quote, take into consideration all relevant circumstances of the case. So are we just left with those four corners of the will and that's it? Or what about this very reliable, incredible evidence that we heard all about from Ms. Butts over there? My Lord, I would respectfully submit that the legislation has been interpreted by the case law consistently across the country. In terms of evidence of surrounding circumstance, there is some dispute and some courts, such as the Nova Scotia Court of Appeal in Mitchell v. Mitchell estate, found that surrounding circumstance was not relevant in circumstances where the will was clear on its face. However, the question here isn't simply of surrounding circumstance. It's about evidence of direct intent of the testator and in cases across Canada, and actually, in fact, in the United States of America as well, courts have been reluctant to admit evidence where it is contrary to the direct intent that's stated in the will. We have some deference to the trial judge here and in her discretion, she allowed this evidence to roll in. And I might say that your counsel, and I don't think you were there, but at trial there wasn't much of a song and dance about it coming in. So in it came, and so here and now at this high court level, are we to interfere with Justice Gilmour's discretionary role in allowing that, having regard to the statute? Unfortunately, I was not present for the trial decision. Of course you weren't. And I apologize for that. It's always new counsel at the appeal. We know that. However, my lord, the issue wasn't actually raised of extrinsic evidence at the trial level. So we would submit that deference is not necessary considering that the issue wasn't considered. They didn't make, they didn't consider whether. But the judge is the gatekeeper, she let it in. In it is, we've got it, we've reviewed it. So are we to just disregard it or is it simply immaterial? I would ask that you give deference to the court of appeal decision, which rectified the mistaken law of the trial judge. We would respectfully submit that they didn't apply the exclusionary rule, which has been consistently applied across Canada and therefore it was an error. Even though we should afford deference, it would be not fitting in this circumstance. Thanks. At issue, is testators wills are more reliable than extrinsic evidence. Because testators are not obliged to write their wills to accord with the sincere or mendacious assurances they've given to those close to them. And that was recognized by the court in Robinson estate, the Ontario Court of Appeal. Frankly, my lady and my lord, testators may lie. They may misrepresent what they intend to give somebody and change their mind. A mother may say that she will give her house to her son and she may decide against it later on. She may lie because she doesn't want to hurt their feelings. There's a number of reasons why the words of a testator in everyday conversation are simply not as reliable as the words of a will, because the words are meant to be followed, sorry. But Mr. Mishra, really the circumstance here, especially as it applies to the Parchman affidavit, this is not a scenario where I'm gonna tell my daughter I'm gonna leave, I'm gonna tell my son that if he goes to law school, I'm gonna leave him my house just because I want him to go to law school. And I really don't intend to do that, but I'm just leading him along. Ms. Parchman, that's not the scenario here. This is a person who's known Mr. Spence for a number of years, knew him when he found out about the baby on the way that had a white father, knew him through the conversations about how disappointed he was in his daughter, how the relationship deteriorated. So this isn't a situation where a testator is lulling a would-be beneficiary along to get some benefit out of it. Is that not a distinction here? It is true that this circumstance is different than the examples that I have listed. But the question isn't necessarily what's true on these facts, but it's what would be allowed if we allow this exclusionary rule to not apply in this circumstance. Because what they attempt to adduce is evidence of character of the testator to say that he is racist as an individual. So therefore, the evidence of the will or the reason he willed his possessions in the way he did was motivated by racism. So it wouldn't just apply in the circumstance here where Mr. Spence has said some things which are very unsympathetic, but it would also apply to circumstances where an individual has in the heat of a moment in a fight said things that they are not proud of, said things that may have been motivated by racism, may have been motivated by sexism, or may just be generally bigoted, that they don't actually mean to act on. The distinction is that we don't know when they act if that's actually their motivation and when they will their possessions. It's a plausible story that Mr. Spence, who spent so much time with his daughter, he raised his daughter, he funded her through school countless graduate degrees. I think four was at the last count that I saw. And then they had a fight and they didn't talk for 10 years. Maybe he willed, he didn't give her anything because she had a son who was biracial. But maybe it was simply because she lost touch with her father that she showed no interest in her father and that she wanted nothing to do with her father. Maybe he regretted what he said, maybe he regretted what he did, but they never ever reconciled and that was the fundamental motive. And it doesn't just apply in this circumstance. By allowing this rule, we would allow individuals to lead evidence of affiliations with unpleasant organizations. The fact that an individual was a member of the menness organization, the men's right group, or the all lives matter group, or even the black lives matter groups. Any organization that is controversial and that may offend public policy. We would think it would be unjust if we allow that evidence to apply to the will. The idea that because they were a member of a distasteful organization, that they willed their possessions in a way that was bigoted. That an individual who's racist, some aspects of society will always be racist and will act like that in every aspect, yes. But now, Mr. Mischer, aren't you really, and Mr. Hooper likes to go back in time, but aren't you really asking us to go back in time? And what I'm about here is if you look at the Robinson estate case and paragraph 24, I just wanna read this to you. Extrinsic evidence is admissible to aid the construction of the will. The trend in Canadian jurisprudence is that extrinsic evidence of the testator's circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading. So the Ontario Court of Appeal is telling us, in that decision, just what we've heard from the other side, that this is on the table and not the kind of speculation that you're answering Justice Bush while with. You're asking us to speculate. We've got evidence that was admitted on the ground floor and what are we gonna do about it? You're saying to toss it, but... My Lord, I would distinguish the evidence of surrounding circumstances with evidence of extrinsic evidence of direct intent. So there's two responses. So firstly, the Court of Robinson is not the authority on the evidence of surrounding circumstances. There is a split in the case law, whether surrounding circumstances is acceptable or not. And again, I would refer you to the Nova Scotia Court of Appeal decision in the Mitchell Estate v. Mitchell Estate. And in that decision, they found that where the intention is apparent on the face of the will, which it would be in this circumstance, there is no need to look at surrounding evidence as it is a Nova Scotia Court of Appeal decision. We believe it has more weight in this matter. But secondly, we would say is that we're talking about direct extrinsic evidence that is contrary to intent. And circumstances of direct extrinsic evidence, not only did the Court of Ontario Court of Appeal in Robinson estate say it was inadmissible, but the Court in Hanson v. Mechardy, the Alberta Court of Appeal, also said it was inadmissible. And when they cited that decision, they actually made reference to the Saskatchewan Court of Appeal in another Heidel, I think is the name, where they found it was also inadmissible. In fact, they cited court decisions across Canada, including Ontario Superior Court level, Ontario High Court level. In fact, it is incontroversial. And my friends even admit that evidence of direct intent is not admissible where it is contrary to the express words of the will. What they attempt to do is they say motivation, evidence of motive is somehow distinct. However, we respectfully disagree with that submission for two reasons. Firstly, we would say there's a principle reason why evidence of motive actually should fall under the exclusionary rule that has been upheld in courts across the country. Just as a testator may lie about who is to receive a gift, a testator may lie about why a gift is given. Sometimes it's to spare feelings. Sometimes it's because they don't have the heart to say the reason that they're truly acting the way they are. And sometimes it's because they change their mind. Motive is a more complex phenomenon than intent. And only a testator truly knows why they act in the way they do. Therefore, it is the testator who is best situated to give evidence of what they intended or what they did not intend. And I'll refer you to the Nova Scotia Court of Appeal Decision at paragraph 98 in this matter. The court ruled that if extrinsic evidence is not admissible to establish what a testator intended, still less should it be admissible to question why the testator made a particular bequest. That was the ruling in the Court of Appeal Decision in this case. And it's a critical ruling because it shows that motive evidence is actually captured under the subset of evidence of intent. And it's something which was never addressed by my friends in either the written or their oral submissions. The second reason why evidence of motive should be included under the exclusionary rule is the practical reasons. And these are the reasons that I've already alluded to throughout this address. The fact that it's too broad and would allow evidence that doesn't necessarily change whether or not a testator willed certain possessions for certain reasons. If we accept, as my friends submit, that the character of a testator is relevant insofar as it's contrary to public policy, then potential beneficiaries have too many grounds to be able to challenge valid wills, wills that are lawful on their face. And that, and the two examples I give to you are individuals' associations with distasteful organizations, as I've already mentioned, and individuals saying bigoted remarks that they actually do not wish to act on, that they actually do not plan to act on, but they set in the heat of the moment and they may regret or they may wish that it never happened. Courts could wade into this debate. They could see and try to weigh what is relevant, what's not relevant, what's credible, what's not credible. They would do so without the testator present, which is a failing, but they could wade into this debate. However, they've made the conscious choice not to. It's true that sometimes a testator's intention is not apparent on a will, or a clear intention that is spelled out in a will is actually not what a testator truly meant to do. They may have changed their mind. There may be a host of extrinsic evidence which suggests that actually they meant to do something else, and this exclusionary rule will not capture that, and that is an unfortunate fact, but it still is necessary to uphold this exclusionary rule for the reasons in Robinson. And those reasons are that the evidence of a disappointed beneficiary and other third parties is simply not as probative of a testator's intentions. Departing from a well-established general exclusionary rule would not lead to a more faithful implementation of a testator's true intentions. So although we may lose some fair cases, some reasonable cases, the general exclusionary rule is necessary to ensure there isn't rapid litigation that the testator's intentions aren't overthrown by unreliable and incredible, or I should say not credible information. I would like to note that extrinsic evidence of motives, contrary to public policy, is particularly toxic. Evidence of racism is highly prejudicial. It can allow someone's worst moments, something that they wish they could take back to define their every action, define the reasons they will their possessions as they did. It is reductionist, and it means that individuals with racist or sexist beliefs do not, and who do not necessarily act on those, or who do not act on those in the context of their will, will not have their will protected and will have their will subject to challenge by potential beneficiaries. Mr. Mishra, you know, it's really hard to plural with you on this score, but if we go back to as Justice Bourgeois mentioned earlier, in the specific Ms. Parchment here, are you able to relate any of this argument to that evidence that we have from Ms. Parchment? I mean, you've heard or described. I mean, is there any, what is the danger in accepting the Parchment evidence is what this boils down to? Because I appreciate your wide-ranging views and where this might take us. We're always interested on floodgates as a precedent, of course, but in the specific to Ms. Parchment, I really need some help there. Certainly, my Lord. The test that was set out by my friends was very simple. They said that if the information was relevant, if the information was reliable, and the information touched on motives that relate to public policy, it should be accepted. And yes, that test would apply to Ms. Parchment, but it would also apply to all these cases that I have just discussed. Because by making public policy something which is at issue, then it would mean that character evidence is relevant in those proceedings. And all they would need is to find some individual who's a third party, or some individual who has some sort of arm's length distance. And even on the submissions of my friends, they would accept Ms. Verlin-Spence's affidavit. So they don't even play by their own rules of saying that evidence that is potentially not credible would be allowed. They, in fact, would allow that based on the third party evidence. So all the examples that I discussed, although they seem problematic, is exactly the reason why we shouldn't let this one case in because it would allow all these other cases, these floodgates of cases, to also be admitted. The danger isn't not the individual one. It's that one bad case can end up making bad law that would apply to wills across Canada. Thank you. We would say there's a principle that law should be knowable. And that uncertainty would lead to more litigation, it leads to more disputes, and it leads to more conflict. And that is particularly toxic in the context of wills disputes. Because these are not parties who have never met each other. They are parties who are grieving the loss of a loved one, of a family member, of an acquaintance. And they are often disputes between friends and family who have persistent relationships after and before the litigation. And we would ask the court to be very cautious in allowing floodgates of litigation that is specifically to do with wills because it's so harmful to relationships and so damaging to individuals. I see them running low on time. So I'm going to let my factum speak for itself on the issue of hearsay. And I'd like to just conclude my remarks before my colleague continues with submissions. The ramifications of this case go far beyond Mr. Spence. Allowing this appeal would give potential beneficiaries too much power to defeat a testator's wishes. To ensure certainty, to ensure the testator's intentions are honored, and to prevent excess litigation, floodgates of litigation. We respectfully submit and request the extrinsic evidence not be admitted. Thank you. Thank you. Good day, my lady and my lords. The Nova Scotia Court of Appeal was correct in upholding the testamentary autonomy of the testator and refusing to set aside the will. Today I will present three submissions to support this contention. First, I will demonstrate that this will does not pertain to the public interest. Therefore, the public policy exception cannot and does not apply. Next, I will establish that the testator's Family Maintenance Act was not intended to encompass public policy interventions. And finally, I will show that accepting the public policy intervention in this case would only serve to undermine the testamentary autonomy of testators. I begin with my first submission. This will does not engage the public interest. The court and Canada trust was clear. In order for the public policy exception to apply, the will must pertain to the public interest. In this case, the will does not pertain to the public interest. Therefore, the public policy exception cannot apply. The gift made in Canada trust was a public gift. As a result, the court found that the public interest was engaged and could not be made with discriminatory conditions. This gift is neither a public gift nor are there any conditions which require the trustee contravene a legislative authority in order to carry out the gift. The gift made in Macorcal was to a hate organization, the National Association. Both their purpose and goals contravene section 319 of the criminal code. This gift does not involve any prohibited activities. The trustee is not required to undertake any actions that contravene legislation. Therefore, Macorcal cannot be instructive in this case. Also, the circumstances in Fox are not helpful either. There, the court held that a trustee is a public role subject to judicial control. However, the court also held that a testee is not subject to that judicial control. So while a trustee cannot make a gift with a discriminatory intent, a testee tour would be within their power to do so. While the court emphasized public policy, this contradiction demonstrates that the primary concern of the court was with testamentary autonomy. In that case, the trustee was acting in contravention of the wishes of the testee tour. However, the critical reason why the public interest does not apply in this case is because Mr. Spence is not subject to any statutory obligation. He would be free to make this gift in life. If we accept the public policy exception in this case, we would not prevent the harms my friend has outlined. They would simply happen at a different time. Testators looking to make these gifts would make them in life as they are not subject to any judicial control. Moreover, we would ask the question, if, as my friend asserts, the harms undertaken by Mr. Spence are so objectionable to public policy, why then is he permitted by the state, the state acquiesces through the entirety of his life to make such decisions? Comparatively in both Canada Trust and McCorkle, there was a statutory limit placed on the testee tour to prevent them from making these gifts in life. Mr. Laney, if clause 5H of the will, instead of being written the way it is written, if the reason that was given was because his daughter, Bearline, had fathered a child with a white man, if that was directly in the will, would that change anything? With respect, my lord, no. Because Mr. Spence could still make this gift in life. He could tell his daughter, Bearline, that he did not want to gift her because he disagreed with the way that she chose to live her life and that would be entirely within his right. Why then would we intervene now as opposed to through the entire course of the testee tour's life? Arguably that behavior is more impactful through the course of a number of years than after the testee tour has died. In McCorkle was objectionable because the gift was, I guess it was seen as a hate gift. It was given to a hate organization. If, as I'm suggesting here, if the gift was motivated by hate, isn't that not relevant? Is that not the same thing? With respect, my lord, no. The court in Canada has undertaken hate legislation from a very different perspective as opposed to just freedom of expression more generally. In both Whatcot and Keegstra, there were distinctions made between hate speech and discriminatory speech. And hate speech was the act of promotion of hate, which we would all assert an hate organization like the National Association would do. But in this case, there's no hate being obligated for. Mr. Spence is simply making his intentions clear. The distinction is important. Thank you. Thank you. This gift does not pertain to the public interest. Therefore, we cannot apply the public policy exception in this case. Moreover, none of the harms my friend has outlined in his factum would be addressed by accepting the public policy exception. Individuals would simply make these gifts in life. My second. Ms. Delaney, this court's not bound by precedent as you're aware. You'd agree with me that what is in public policy, what is in public policy has radically changed from 60 years ago, 50 years ago, 30 years ago, 10 years ago, maybe even one year ago. Would you agree with me that public policy, what we view as contrary to the good of the public is a changing concept based on the times we live in? Yes, certainly, my lady. Public policy is always changing. And the state has recognized that in passing human rights legislation, and in that human rights legislation, Mr. Spence is not subject to any control. Employers are subject to control. Individuals who provide service are subject to control. But family members are not subject to that control. And they have spent time writing legislation to address these concerns. So it should be of no concern to us then from a public policy perspective that Mr. Spence, if the evidence is accepted, simply disliked a child because one of its parents was of a race he did not approve of. That should be of no concern to us from the perspective of the society we want to live in. The respondents are not condoning the behavior, my lady. We are simply suggesting that the state has already acquiesced to this behavior for the entirety of Mr. Spence's life when arguably that behavior would be significantly more damaging to his family. Well, the state has acquiesced to a lot of behavior in the past that we don't acquiesce to anymore, correct? Certainly, my lady. However, there is a distinction because human rights legislation now exists to address specific public harms, but it has not addressed this harm. And new grounds are added to human rights legislation all the time to correct situations that have been overlooked. Certainly, and we would argue that the legislature is in the best position to balance those interests. So it's well settled that racial discrimination offends public policy in Canada. I mean, that's conceded by the respondents? We would not condone racial discrimination, no. So we're just left with this argument that because, and you've cited various statutes and what might happen in the Spence lifetime, now that we have this opportunity with this will, we're to close our eyes to it. Well, my Lord, both my friend and the respondents have asserted that testamentary freedom is critical. And it should only be overturned when there's a significant public harm. And we would assert that by permitting Mr. Spence to undertake these behaviors for the entirety of his life and applying the public policy exception would not undo those harms. It would only simply serve to undermine testamentary autonomy. So we're not balancing the harms correctly. So testamentary freedom trumps a closet racist? No, my lady. With respect, what testamentary autonomy is supposed to be instilled to ensure against a public harm? In this case, we can't identify a public harm because Mr. Spence would be free to do that. Because Mr. Spence would be free to make this gift in life. There's simply no public harm in accepting the public policy exception in this case because we've acquiesced to the behavior in life. There's no prohibition from him doing this. He could dispose of the entirety of his estate before he died based on racial discrimination. And now we would draw the proverbial line in the sand at death. My second submission to this court is the Testators Family Maintenance Act was not intended to encompass public policy interventions. The court affirmed this past July in Irving that the relationship involved must be akin to parent-child in order to warrant support under these provisions. The legislature requires an indistinct needs-based obligation to use these provisions. The appellant has not asserted a needs-based intervention in this case. Rather, they have asserted public policy as their reason for intervention. The legislature also did not intend for public policy to operate as the Testators Family Maintenance Act does not control Mr. Spence's behavior. Mr. Spence would be able to make this gift in life. The Testators Family Maintenance Act is concerned with existing obligations for support. The legislature simply did not apply for public policy interventions to be encompassed under this statute. Mr. Laney. Yeah, certainly. In the case of Professor Raj Sandhu, as I recall that case and the facts, there is no actual dependency of the child that proved to be a dependent. Certainly, the statute is wide enough to encompass dependents that are independent adult child, children rather. However, the statute is aimed at ensuring in the event that a testator dies without having made adequate provision for his dependents that the state does not have to intervene and provide for them. So it's not so much that there's no provision whatsoever. It's that there needs to be a needs-based obligation asserted and my friend has not asserted any needs-based obligation under this statute. My final submission to this court is that widening the scope of public policy to govern over gifts like the gift made by Mr. Spence would simply serve to undermine to testamentary autonomy. The gifts made by a testator are their final human act. They are arguably representative of the way that the testator has chosen to live their lives. As a result and consistent with the finding in Miller, we cannot overturn those gifts without a clear public harm. And in this case, there is no clear public harm. Mr. Spence could simply make this gift in life. Moreover, this harm is not measurable. Permitting a public policy intervention in gifts where there's no existing statutory control could result in gifts being overridden for any public policy reason a court deems fit. Courts need not ground their finding in an enumerated category of discrimination or statutory authority. Now, while we would trust the court to make reasoned decisions, the law must be knowable. Accepting a public policy intervention in this case would leave testators with virtually no ability to know whether or not their gifts would be carried out, as there would be no accepted scope of public policy. Permitting the public policy exception in this case would only serve to undermine the autonomy of testators and would not address any of the harms my friend has outlined. To conclude, this will does not engage the public interest. Therefore, the public policy exception cannot override the testators clear intent. Moreover, accepting a public policy intervention in this case would not address the harms my friend has cautioned against. Widening the scope of public policy to apply in gifts where no public interest is at stake would simply serve to undermine testamentary autonomy. For these reasons, we respectfully request that this appeal be dismissed and the decision of the Nova Scotia Court of Appeal be upheld. Thank you. Thank you. Is there a rebuttal? Thank you. All right, thank you, Council, for your very persuasive arguments written and oral. I believe the panel will break for a few minutes to deliberate. God save the deed. Not before two, but they can't start without me. I want to thank both sets of council for very, very good presentations. And we had a little debate before we came here, how much like real life we were going to make this for you. Are we gonna be easy on them, because they're just babies? Give them a taste of what's to come, as opposed to babying you along. And the four of you, I think the first comment that came out of our respective mouths when we started to deliberate was, my goodness, they respond it well to some heavy duty grilling from the bench. So, if I had have been in your shoes many years ago, I probably would have started crying with some of Justice Chipman's questions. So, well done. For the attentive audience, I sit on the court of appeal, nobody's ever interested in what I do in my courtroom. So it's a real pleasure to see interested people. Could you all come to more, might they make things more interesting for me? All right, I'm gonna get to the purpose of this evening and I'm going to be announcing first and it's my great pleasure to do so. The runner's up for the evening. This is the Leonard A. Kitts Prize in Advocacy. Our two winners of that particular prize is Lisa Delaney and Nick Hooper. Congratulations. And it is my pleasure and privilege to announce the Smith Shield winners as Nina Butts and Vinayak Mishra. Good job. You can go down, Justice Chipman, and present it. Maybe all of us. Come on, come on. Thank you, we have our winners, congratulations. Our esteemed panel, and congratulations to all our mooters. I mean, you just did a wonderful job, everybody did, and thank you for the evening. I'd like to invite everybody upstairs to the faculty lounge for reception afterwards, including our esteemed bench. So please, make your way upstairs now.