Can Racism or Discrimination Invoke The Public Policy Discretion to Set-Aside a Will?

In the appellate decision, Spence v BMO Trust Company, 2016 ONCA 196, the Ontario Court of Appeal considered whether the lower court erred in interfering with the testamentary freedom of a Testator by exercising its discretionary public policy powers.

In this case, the Testator, Rector Emmanuel Spence, executed a Will which disinherited his daughter Verolin, and grandson A.S., and bequeathed his assets to his estranged daughter Donna and her two children. Verolin challenged the validity of the Will on the grounds that it was void due to public policy concerns. Much of Verolin’s argument rested on the assertion that she was written out of the Will because (a) she had been involved with a man of ethic descent and, (b) she bore a child out of wedlock with this man.

The lower Court held the Will to be invalid due to a perceived intolerance, based on witness testimony, that while the testator had in his Will disinherited his daughter because they were estranged and had no relationship, he had actually disinherited her for having a mixed-race child. The lower court held that the Testator’s motive for disinheriting Verolin was based “on a clearly stated racist principle that violated public policy as well as human sensibilities”.

The Ontario Court of Appeal overturned this decision and provided three factual aspects that they felt were significant.

  1. Under the Succession Law Reform Act, Verolin had no statutory entitlement to her father’s Will. Her argument rested on the notion that she was a dependent and thus her right to support should have been protected. Section 58 and 60 of the Succession Law Reform Act essentially aim to mitigate situations where dependent’s are not adequately accommodated in a Will. The Courts held that independent adult children do not fall within the scope of the definition of “dependent.” Because Verolin was outside this scope she was not entitled to this claim against her Father’s Estate.
  1. The lower Court erred in that it allowed extrinsic evidence in the form of witness testimony, to be admitted to contest Mr. Spence’s objectives in constructing his Will. This was incorrect as extrinsic evidence should only be relied upon when the testamentary instrument or a clause in the testamentary instrument is ambiguous. The court found that Mr. Spence’s Will was unambiguous and that the lower Court erred in scrutinizing his motives.
  1. The Ontario Court of Appeal did not view the Will as discriminatory in nature. The Will itself made no mention of race or racist motivations on the part of Mr. Spence. Because of this, the Ontario Court of Appeal was of the belief that the Will did not offend public policy.

A Person’s freedom to distribute his or her property is deeply entrenched in the roots of our law and this decision reaffirmed that principle.

Next week, I will discuss some scenario’s where a Court could set-aside a will for being contrary to public policy.

Thank you for reading,

Rick Bickhram – for more information on Rick Bickhram, please follow this link.

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