The freedom upon death to dispose of your property and other assets as you choose is an important right that has long been recognized in Canada and elsewhere. However, there are restrictions to this freedom and, in specific circumstances, Canadian Courts have held that it is in the best interests of society to intervene and set aside a testator’s will. For example, a Court may find that a will is void if it offends the law, puts unreasonable restraints on marriage or is racially or religiously offensive.
A recent Ontario Supreme Court case, Spence v. BMO Trust Co., 2015 ONSC 615, created new grounds to challenge a will based on public policy reasons. In that case, Emmanuel Spence, an African-Canadian minister, left a will in which he disinherited one of his daughters, Verolin, and left all of his assets to another daughter, Donna. The disinherited daughter, Verolin, brought a court application to set aside her father’s will, asserting that the will was void for public policy reasons. Verolin argued that the reason she had been disinherited was because her father did not approve of her romantic relationship with a Caucasian man, and did not accept the mixed-race child borne out of the relationship. The Court accepted evidence that, prior to Verolin informing her father of her romantic relationship and pregnancy, the parties had had a very close relationship. The Court also accepted evidence that Donna and her father had been estranged and hadn’t seen each other for decades before Emmanuel’s death. Despite Emmanuel’s will containing no suggestion of racism (as the will simply advised that Verolin had been disinherited because she had not communicated with her father for several years), the Court found that the evidence plainly showed that Emmanuel’s reason for disinheriting Verolin was one based on clearly racist principles. At paragraph 49, the Court stated:
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.
Spence v. BMO Trust Co. expands the definition of what may be considered offensive to public policy in the context of wills and estates litigation, and suggests that explicit language may not always be required. As a result of this case, parents creating a potentially controversial estate plan should seek legal advice to ensure that their wishes cannot be challenged in Court. Conversely, children who believe they may have been unfairly excluded from their parents’ will, for a reason that may be contrary to public policy, should also seek legal advice to ensure that their rights are protected.