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
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
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
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
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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