Estate Planning Series: How One Will Kicked Off a Baby Arms Race

On Halloween 1926, Canadian lawyer Charles Vance Millar died and left behind a will promising hundreds of thousands of dollars to one or more unknown women. The catch? They had to give birth to the most number of babies in the decade after his death. The will kicked off a 10-year race as well as a legal suit that went all the way to the Supreme Court of Canada.

The infamous clause went as follows:

“9. All the rest and residue of my property wheresoever situate, I give, devise and bequeath unto my Executors and Trustees named below in Trust to convert into money as they deem advisable and invest all the money until the expiration of nine years from my death and then call in and convert it all into money and at the expiration of ten years from my death to give it and its accumulations to the mother who has since my death given birth in Toronto to the greatest number of children as shown by the Registrations under the Vital Statistics Act. If one or more mothers have equal highest number of registrations under the said Act to divide the said moneys and accumulations equally between them.”

This was not the only quirky bequest in the will. Millar famously had a prankster streak and thought that any person had a price. Supposedly he would drop dollar bills on sidewalks to watch people pick them up. His will had many more perverse gifts, including:  

• Shares in the Ontario Jockey Club, a horseracing club, to two notable and vocal opponents of racetrack gambling and one disreputable man who would not have been able to join the club.
• One share each of another horseracing club, the Kenilworth Jockey Club, to Protestant ministers of nearby towns – part of the joke was that the shares proved to be nearly worthless (just half a cent each) in the end.
• One share each of the O’Keefe Brewery Company to Protestant ministers and to the Toronto Orange Lodge (a Protestant fraternal order). Adding to the joke was that the brewery was a Catholic company.
• A Jamaican vacation home jointly to three prominent lawyers (a Mr. Gault, Mr. Montgomery and Mr. Haverson) known to hate each other.

These ‘smaller’ gifts made news for weeks, but Clause 9, which kicked off a ‘contest’ called The Great Stork Derby, made news for years as families hit by the Great Depression realised they could be in the running and started attracting media attention.

The law

Millar’s will was obviously unusual – the words ‘syok sendiri’ (in our Malaysian lingo and context) come to mind. But what does the law say about such wills assuming such a will was made in Malaysia? Is there a limit on the conditions you can attach to the gifts you make in a will?

In general, you can actually attach whatever conditions you like to the gifts to your will - for example, to specify that the money in a particular bank account only be used to pay for your children’s education. There are, however, several important exceptions (see: Halsbury's Laws of Malaysia - Wills, Probate, Administration and Succession (Volume 11(2)), paragraph [330.053]-[330.058]).

Among others, your conditions cannot be illegal or unlawful (i.e. you cannot ask someone to commit a crime or do something illegal). Your conditions must not be uncertain or vague – it must be possible to determine whether the conditions have been fulfilled, for example. Your conditions also cannot be contrary to public policy.

The public policy exception in particular is broad and has no clear definition. In the English case of In Re Caborne, Hodge And Nabarro v Smith And Others [1943] Ch 224, a gift to a son made conditional on the death of his wife or termination of their marriage was considered void against public policy because it was designed or would encourage their future separation (“an invasion of the sanctity of marriage bond”, according to the Court).

The Malaysian courts have not had much opportunity to consider public policy questions in relation to wills. The Wills Act, 1959 is also silent on the matter.

However, contract law may provide a useful point of reference and may be an influence on future cases considered by the Courts. Section 24(e) of the Contracts Act, 1950 expressly provides that contracts whose consideration or objects are “immoral, or opposed to public policy” are not lawful and therefore void. Section 24(e) also provides these illustrations for ‘immoral’ contracts:

“(j) A, who is B's advocate, promises to exercise his influence, as such, with B in favour of C, and C promises to pay RM1,000 to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Penal Code.”

The question of whether our Malaysian courts will apply contract law principles in interpreting a Will and in deciding whether a testator’s intentions in a Will are contrary to public policy remains to be answered.

What happened to the Great Stork Derby?

Since Millar died wealthy, it is not surprising that relatives of Millar filed legal challenges to his will. They tried to invalidate the will on the grounds of public policy, arguing that it would encourage mothers to have many more children and ultimately increase the infant mortality rate.

The judge, Middleton J dismissed this and upheld the clause: Millar, [1936] O.R. 554, finding that ‘public policy’ had to be something “recognized as for the public weal and the common law, and the principle must be found to be embedded in the authorities”. The judge by way of example looked at the public debate over alcohol production and consumption, noting that no judge could unilaterally void a contract in relation to this – until it was legislated for.

Attention also turned to the mothers who were in the running to win the ‘contest’. The Canadian media tracked new births from families in the running. 32 lawyers reportedly showed up to claim Millar’s prize for their clients. Middleton J, after perusing their claims, narrowed the issue down to 6 families, all of whom had at least 9 children of the correct age.

In the end, 2 mothers (who had 10 and 11 children) were knocked out of the running by the judge, who found (harshly) that illegitimate children and stillbirths did not count as “children”. They instead settled with the estate for $12,500. That left the remaining 4 mothers, who each had 9 qualifying children, to split about $570,000 between themselves – about $9 million in Canadian dollars today.

Millar appears to have had the last laugh. Fortunately for his reputation as a lawyer, the Supreme Court eventually agreed with Middleton J, finding the will and valid and the construction of Clause 9 correct: Millar Estate (Re), [1938] S.C.R. 1.

Other References:

1. The Toronto ‘Stork Derby’ Baby Race, Snopes.com https://www.snopes.com/fact-check/the-great-stork-derby/
2. The Will of Charles Vance Millar and the Stork Derby, Duhaime.org http://www.duhaime.org/LawFun/LawArticle-1281/The-Will-of-Charles-Vance-Millar-and-the-Stork-Derby.aspx
3. How A Dead Millionaire Convinced Dozens Of Women To Have As Many Babies As Possible, FiveThirtyEight.com https://fivethirtyeight.com/features/how-a-dead-millionaire-convinced-dozens-of-women-to-have-as-many-babies-as-possible/
4. 668: The Long Fuse, This American Life https://www.thisamericanlife.org/668/transcript