Canada: Public Policy And Wills: How Do They Interact?

Last Updated: May 11 2015
Article by Peter C. Rumscheidt and Harry D. Thompson

In the matter of Spence v. BMO Trust Company, the Ontario Superior Court of Justice was asked to set aside a Will for public policy reasons.  The evidence suggested that the deceased disinherited his daughter because the father of the daughter's child was Caucasian.  After reviewing the evidence and applicable legal principles, the Court concluded that the Will was void and should be set aside. 

Facts

Emanuel Spence ("Emanuel") had two daughters, Donna Spence ("Donna") and Verolin Spence ("Verolin").  Emanuel died on January 25, 2013.  His wife had predeceased him.  Verolin and Donna were Emanuel's children from a previous marriage.  Verolin had one son.  Donna had two children. 

When Emanuel separated from his first wife, Verolin began to live with Emanuel.  Donna resided with her mother.  After the separation Donna and Verolin did not live together with the same parent nor did they communicate with each other.  

Emanuel immigrated to Canada in 1979 from England.  For several years Verolin remained in London to complete her studies.  She moved to Canada in 1984.  Donna remained in London throughout.  Emanuel never visited Donna in London and Donna never came to Canada to visit with either Emanuel or Verolin.

Through the years Verolin undertook various courses of study and Emanuel assisted her with the associated costs.  In 1992 the evidence indicated Emanuel made a Will which provided that Verolin would inherit Emanuel's home.  The evidence indicated that Emanuel was very proud of Verolin's numerous educational accomplishments and that they enjoyed a strong relationship.

This relationship came to an abrupt end in September 2002 when Verolin advised her father that she was pregnant and that the father of the child was Caucasian.  Emanuel stated that he was ashamed of Verolin and thereafter he had restricted communications with her.  According to Verolin's Affidavit, Emanuel made it clear to her that "he would not allow a white man's child in his house".  Between 2002 until he died in 2013 Emanuel had no communication with Verolin and would not acknowledge his grandson, Alexander. 

Emanuel made a new Will dated May 12, 2010 which included a clause specifically disinheriting Verolin.  It stated:

"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."

BMO was appointed as estate Trustee.  The Will distributed the estate to Donna and her two children. 

Verolin applied to the Court for an Order setting aside the Will on the basis that it was void for public policy reasons. 

The evidence before the Court included an affidavit from a friend of Emanuel's who had known Emanuel's spouse, Norma Spence, for over 35 years.  The friend's affidavit deposed that on several occasions Emanuel had told her that the reason he disinherited Verolin was because the father of Verolin's son was white.

Decision of the Court

The Court confirmed that the law allows a Will to be declared void for public policy reasons in certain circumstances.  BMO attempted to distinguish this case from prior cases on the basis that in the prior cases the language or clauses which the Court found offended public policy were contained in the testamentary instrument itself which was not the situation with respect to Emanuel's Will.  It took the position that as there was no mention in the Will that Verolin was being disinherited because the father of her child was not black, the public policy principles did not apply.

Verolin took the position that there were prior Court authorities which establish that a Court can look beyond the specific words in the testamentary instrument in assessing whether a Will should be declared void for public policy reasons. 

The Court acknowledged that going beyond the specific words in the testamentary document to a broader assessment of the intentions and motivations of the testator in deciding whether a Will should be declared void for public policy reasons, poses challenges and risks.

However, the Court concluded, based on the "unchallenged evidence", that Emanuel's reason for disinheriting Verolin was "based on a clearly stated racist principle".  The Court continued by stating:

"Does it offend public policy that the deceased's other daughter, Donna, should receive the entire estate simply because her children were fathered by a black man?  That, in my view, offends not only human sensibilities, but also public policy."

In the result the Court set aside Emanuel's Will.  This resulted in an intestacy and as such the estate was divided equally between Verolin and Donna.   

Conclusion

While arguably this decision expands the scope of the public policy basis for challenging a Will, the Court made it clear that the conclusion it reached arose out of the unchallenged and explicit evidence as to Emanuel's intentions behind the provisions in his Will.  Absent such clear evidence, it will likely remain a challenge to set aside a Will for public policy reasons beyond cases where the offensive language is specifically stated in the testamentary instrument.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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