The Ontario Court of Appeal recently ruled that a Will was valid even though the testator disinherited one of his daughters for what appeared to be racially motivated reasons.
In Spence v. BMO Trust Company, the testator, Mr. Spence, had two children, Verolin and Donna. After their parents separated, Verolin lived with her father and Donna lived with her mother. Verolin had a good relationship with her father for many years, living with him from 1984 to 1993. The relationship changed in 2002 when Verolin told her father, who is black, that she was pregnant and that the father of her child was white. Mr. Spence restricted his communications and contact with Verolin after that time, and never met Verolin’s son.
Mr. Spence made a Will in 2010, expressly excluding Verolin from his estate. Instead, Mr. Spence left the majority of his estate to his daughter, Donna, and her children. Clause 5(c) of the Will read as follows:
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.
Verolin brought an application for a declaration that the Will was void due to: i) the plain language of the Will; and ii) uncontested extrinsic evidence supporting her assertion that she was disinherited for racist reasons, contrary to public policy.
The application judge held that, on its face, the Will did not offend public policy, but that it did offend public policy against discrimination on racial grounds given the “uncontradicted” and “clear” extrinsic evidence. The Will was set aside in its entirety.
The Court of Appeal allowed the estate trustee’s appeal, finding that judicial interference with Mr. Spence’s testamentary freedom was not warranted in this case.
The Court in Spence emphasized the importance of the principle of testamentary freedom, stating that a testator’s freedom to distribute his or her property as he or she chooses is a deeply entrenched common law principle. No one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator. The Supreme Court of Canada also recognizes the importance of testamentary autonomy: it should not be interfered with lightly, but only in so far as the law requires (Tataryn v. Tataryn Estate).
Why Did the Court of Appeal Uphold the Validity of Mr. Spence’s Will?
Although Mr. Spence’s reasons for disinheriting his daughter Verolin appear to have been racially motivated, the Court of Appeal held that the Will was not invalid for the following reasons:
- No Legal Obligation: There was no legislation imposing an obligation on him to leave any of his estate to his daughter, Verolin;
- The Will on its Face Did Not Offend Public Policy: The clause in which Verolin is disinherited did not, on its face, offend public policy, nor did the Will require a beneficiary to act in a manner contrary to law or public policy in order to inherit under the Will. Similarly, BMO Trust was not required to act in a manner contrary to law or public policy in order to implement the testator’s intentions. Nothing indicated that Donna or her children were unworthy heirs or that they would have used their bequest for purposes contrary to law; and
- No Foundation for a Public-Policy Driven Review: Given the facts of this case, the Court of Appeal found no foundation for a public policy-driven review of the Will or Mr. Spence’s intentions. There was no reason to look behind the clear expression of his wishes in his Will.
The Court distinguished this case from those in which Canadian courts have intervened on the grounds of public policy where the implementation of a testator’s wishes required the executors or trustees or a named beneficiary to act contrary to public policy. Some examples of such cases are:
McCorkill v. McCorkill Estate: In this case the testator left the residue of his estate to a neo-Nazi organization in the United States. The implementation of the testator’s intentions would have facilitated the financing of hate crimes contrary to Canada’s criminal and human rights laws. The organization was an unworthy heir, as it was dedicated to illegal and discriminatory ends.
Re: Peach Estate: In this Nova Scotia case the testator’s will directed that his property be sold to an Anglican or Presbyterian. This provision was found to be invalid as it would have required the executor to violate the Nova Scotia Human Rights Act, which prohibited discrimination in respect of the “purchase or sale of real property” on account of religion.
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