Can a Will be Disregarded for Public Policy Reasons?

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com.​

In the recent case of Spence v. BMO Trust Company et al., the Ontario Court of Appeal dealt with the interesting question as to whether or not the court can set aside a bequest in a Will because it may have been motivated by racism.

Rector Emanuel Spence was born in Jamaica and died in Ontario 71 years later. He had two children, Verolin and Donna. Both are in their 50’s.

Spence became separated in about 1965 after which Verolin lived with him and Donna lived with her mother. It appears that Donna had no further communication with Spence from that point onward.

According to Verolin, she and Spence enjoyed a positive relationship for many years. That changed in 2002 when she informed Spence that she was pregnant. When Spence learned that the father of Verolin’s child was white, he ended his relationship with his daughter permanently.

About 8 years after Spence ended his relationship with Verolin, he made a Will. The will made no provision for Verolin or Verolin’s child. Instead, the will left most of Spence’s Estate to Donna. In fact, the will specifically stated that Spence was leaving nothing to Verolin “as she has had no communication with me for several years and has shown no interest in me as her father”.

Verolin challenged the will, saying that it was void because it was contrary to public policy. In support she filed an Affidavit alleging that Spence’s decision to exclude her from the will was racially motivated. An individual who had acted as Spence’s occasional care giver submitted an affidavit, stating much the same thing.

When the matter first came up for hearing by way of Application, the Application Judge determined that on its face the will did not offend public policy. However, given the clear evidence that Spence’s reason for disinheriting Verolin was based on a “clearly stated racist principle”, the will offended both human sensibilities and public policy. The will was set aside in its entirety.

The case was appealed to the Court of Appeal.

The Court of Appeal began its analysis by focusing on what it described as the “important principle of testamentary freedom”. The Court pointed out that in Ontario at least, there was no statutory duty on a competent testator to provide in his or her will for an adult independent child, whether based on an overriding concept of an alleged moral obligation on a parent to provide for his or her children or otherwise. That is not to say that testamentary freedom is absolute. For example, where a Trust is established to provide scholarships but the terms of the Trust stipulate that the scholarships are only available to one or another gender or people of a certain racial background, that may well be the type of a violation of public policy that will justify interference by the Court.

In this case, however, the will did not impose any conditions that offended public policy. It provided for the estate to go to Donna and not to Verolin because of what it described as a lack of communication for several years and a lack of interest on her part in Spence as a father. The Court observed that this is “not the language of racial discrimination”.

The Court of Appeal distinguished this case from previous cases in which, for example, bequests were made to what had described as “unworthy heirs”, such as terrorists groups, beneficiaries whose reasons for existence involve illegal activities, and the like. Nor would the implementation of testamentary intentions require the estate trustee to engage in discriminatory conduct in order to carry out his wishes, such as in the case of a Trust that discriminates by, for example, gender or race. Most significantly, the Court asked the question as to whether or not Spence should be entitled to disinherit Verolin on discriminatory grounds if he chose to do so. This was a bequest of a private rather than a public nature. So even if his intentions were repugnant, according to the Court of Appeal, the principle of testamentary freedom overrides a testator’s distasteful intentions unless there are legally offensive conditional terms in the will. A testator has the right to choose his or her beneficiaries. Accordingly, the Court of Appeal determined that the Application Judge was wrong to go beyond Spence’s expression of his clear intentions.

Verolin is now seeking leave to appeal to the Supreme Court of Canada.