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Posted on February 21st 2006 in Legal Articles

The Great Stork Derby

The Great Stork Derby

It is not the law that anyone who entertains wrongheaded notions, capricious whims or absurd idiosyncrasies cannot make a will.
Skinner v. Farquharson — (Supreme Court of Canada, 1902)

Although television has perpetuated the myth that wills are possessed of a certain mystique, generally speaking the contents of a will are straightforward and reasonably dull. Every once and awhile though, there is a will which causes a media sensation. The last will and testament of Charles Millar, a Toronto lawyer, was just such a will.

Charles Millar died in 1926 following a successful and prosperous legal career. Millar was a firm believer that every man had his price and he never missed an opportunity to prove his theory. In fact his greatest evidence came to light after he was six feet under.

The opening words of his will set the tone for the whole document.

This Will is necessarily uncommon and capricious because I have no dependents or near relations and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.

His will included a number of oddball bequests including:

Leaving Ontario Jockey Club shares (which were quite valuable) to two upstanding gentlemen, both of whom had long been vocal opponents of racetrack betting.

Bequesting a share of O’Keefe Brewery, a Catholic firm, to every practising Protestant minister and Orange Lodge in Toronto. (The even greater irony being he did not actually own any shares in the brewery.)

The use of a vacation home in Jamaica to three lawyers who did not like each other.

However, it was the bequest of the residue, that has earned Millar a place not only in law school textbooks but in Canadian folklore. The infamous residuary clause indicated that the residue of his estate was to be given to the Toronto mother who gave birth to the most children in the 10 years immediately following his death.

Initially this strange bequest was merely a curiosity, but with the onset of the Depression the Great Stork Derby1 was on. The public’s interest in the event was insatiable and the mothers, who were in contention, became household names.

As a result of Millar’s wry sense of humour, his estate2 was tied up in the courts for years, eventually ending up before the Supreme Court of Canada. There were a number of legal issues raised by the various interested parties. Those parties included some of Millar’s distant relatives who contested the will on the ground that it was contrary to public policy.

A condition in a will would be contrary to public policy if it directed the recipient to do something which went against the interests of society.

The relatives argued that the residuary clause of Millar’s will had “the tendency to give rise to a competition between married couples to bring about successive births of children in rapid sequence to the injury of the mother’s health, to the injury of the children, morally and physically and to the degradation of motherhood and family…”

The long and the short of it, was that the courts did not buy this argument and the will was upheld. Chief Justice Duff, speaking for the Supreme Court of Canada stated that:

“We find it impossible to affirm from any knowledge we have that a policy of encouraging large families by pecuniary reward to the parents or donations to the children would have a tendency injurious to the state or to the people as a whole;”3

The baby race4 ended in a tie between four women, who each gave birth to nine children. Each of the four mothers received $125,000. Two other mothers, who did not technically qualify to share in the prize, each settled for $12,500.

1 The Great Stork Derby was recently turned into a movie starring Megan Follows of Anne of Green Gables fame. The made-for TV movie was broadcast in January.

2 At the time of his death, Millar’s estate was worth $125,000, however, due to an excellent return on a rather fortuitous investment, the estate increased substantially to $750,000.

3 Millar, Re [1938] SCR 1

4 It did not appear that any of the women had been deliberately trying for the “prize”.