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In Spence v. BMO Trust Co., 2015 ONSC 615, the Honourable Justice Gilmore of the Ontario Superior Court reasoned that it is against public policy for a testator to disinherit an adult child for a reason that runs contrary to public policy.

Background

The testator, Rector Spence, passed away in January 2013 and was survived by two adult children from a previous marriage: Verolin Spence and Donna Spence.

Verolin lived exclusively with her father after her parents’ separation, while Donna lived exclusively with their mother. Donna and her father had virtually no contact after her parents’ separation and were estranged at the time of her father’s death.

The testator immigrated to Canada from London, England in 1979 and Verolin followed shortly thereafter. She lived with her father for many years while she pursued post-secondary education, and he supported her financially throughout her studies. By all accounts, the testator and Verolin had a good relationship. In approximately 1992, Rector advised Verolin that he had made a Will which provided that she would inherit his residence in Maple, Ontario.

In 2002, Verolin’s relationship with her father came to a sudden end when she advised her father that she was pregnant and that her child’s father was Caucasian. The testator, who was Jamaican-born, made clear to Verolin that he would not have a white man’s child in his home. From that time on, Verolin and her father hardly communicated before he passed away in January 2013.

The testator’s Last Will and Testament dated May 12, 2010, included the following clause: “I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.” Donna and her children, however, with whom the testator had no relationship, were not disinherited under his will.

Verolin applied to the Superior Court to have the will declared void on public policy grounds.

Decision

The Bank of Montreal was appointed as Estate Trustee and one of the Respondents in the Application. It argued that the will could not be set aside on public policy grounds because it did not explicitly state that Verolin’s disinheritance was racially motivated.

Although the will did not explicitly violate public policy, Justice Gilmour ultimately determined that the will was void. In her decision, Justice Gilmour placed significant weight on the unchallenged Affidavit evidence of a long-time friend of the testator, Imogene Parchment. Ms. Parchment’s evidence was that the testator had advised her on numerous occasions that he had disinherited Verolin because the father of Verolin’s son was white.

The declaration that the Will was void resulted in an intestacy under the Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26, such that the proceeds of the testator’s estate would be split evenly between Verolin and Donna.

Controversy

In Canada, testators cannot give or withhold inheritances for reasons that run contrary to “Canadian values”, the concept of which is fluid and somewhat murkily defined. For example, a testator cannot give their child a gift on the condition that the child never marry, as it is contrary to public policy to discourage people from getting married.

Although it is an important concept, the public policy doctrine has rarely been invoked as a means of voiding a will in its entirety. It is generally raised as a means of voiding particular provisions in a will if the provision attaches highly discriminatory conditions to specific gifts or other beneficial interests.

Some have argued that the decision in Spence lacks precedential support, as it effectively restricts a testator’s freedom to exclude certain individuals from his or her Will. After all, Verolin Spence was not a dependant of her father and had no legal entitlement to share in his estate. It is difficult to reconcile how Verolin could have been unlawfully deprived of an inheritance to which she had no legal entitlement.

If the true concern underlying the decision in Spence is that testators have too much freedom to exclude surviving heirs from their estate, then one must consider whether invoking the “public policy” doctrine is the best method of addressing that concern. Invoking the public policy doctrine to void a will results in an intestacy, meaning that all provisions of the Will, including those that do not contravene public policy, are set aside. For example, in the Spence case, if the testator’s Last Will and Testament divided his estate between Donna Spence and a charity, then the gift to the charity would fail as a result of the will being set aside.

It is also worth noting that in Spence, the will itself did not express any racist motivations. In fact, it explicitly stated that Verolin had been disinherited due to her lack of communication with her father. Traditionally, the courts look only to the words of the will to determine if a particular provision runs contrary to public policy. They do not generally hear testimony about what the testator intended to achieve unless the will is unclear or ambiguous, which was not the case in Spence.

While it may appear to be a positive development from a normative standpoint to see that the courts will intervene to discourage and, as in this case, outright prohibit the making of gifts that are based on discriminatory values, it could nevertheless be argued that the decision in Spence will encourage estranged family members of testators to challenge wills on public policy grounds if they are unhappy with their entitlement under the Will. Such an expansion of the public policy doctrine may have problematic implications going forward.

Estate Litigation has become far more frequent in Ontario. Some of the most common situations that result in litigation include siblings not being treated equally in a will, large estates, the disposition of sentimental properties such as cottages, dramatic changes in a testator's will, inadequate provision for dependents, testators not having testamentary capacity, poorly chosen executors, and situations involving a second spouse in conflict with children of a first marriage.

If the death of a testator is a spark then a poorly drafted will or ill-conceived estate plan is often the kindling that will promote and sustain animosity and Estate Litigation.  At Blumberg Segal LLP we have helped many executors and beneficiaries, including residual beneficiaires like Charity and Non-Profit beneficiaries negotiate, mediate and resolve complicated and highly charged estate matters and, where all else fails, litigate, advocating for the best interests of our client.

If you are involved in an Estate dispute, please contact litigation@blumbergs.ca or call 416-361-1982 ex. 240 to discuss your options and the legal requiements. 

Blumberg Segal LLP also has the experience to assist you in properly drafting your Last Will and Testament and properly planning your estate to avoid litigation and ensure that your wishes are properly administered.