Intolerance for Intolerance

February 5, 2015 Hull & Hull LLP In the News, Wills 0 Comments

A recent decision of the Superior Court of Justice has made been making headlines.  In Spence v. BMO Trust Company, the Court was faced with the challenging question of whether or not to set aside a will based on a finding that the deceased had disinherited his daughter for racist reasons.

In the Spence case, the Jamaican-born deceased had two adult children at the time of his death.  Decades ago, he had been living in the United Kingdom and had separated from the mother of his two daughters.  The decision notes that after the separation, the younger daughter began to reside exclusively with the deceased, the elder daughter began to reside exclusively with their mother, and that there was little contact between the two daughters thereafter.  The decision notes as well that there was little contact between the deceased and his elder daughter.  The deceased immigrated to Canada in 1979 and his younger daughter followed in 1984 to live with her father.  The decision states that the deceased supported his daughter through her post-secondary education and that they had an excellent relationship.

Their relationship soured in 2002 when the daughter told her father that she was pregnant, and that the child’s father was Caucasian.  The daughter’s evidence was that the deceased thereafter restricted his communication with her, stopped returning her calls, refused to have anything to do with his grandson, and made it clear to his daughter that “he would not allow a white man’s child in his house”.

His will contained a provision stating that he leaves nothing to his daughter, “as she has had no communication with me for several years and has shown no interest in me as a father”.  A friend of the deceased gave evidence that the deceased made it clear to her that the reason that he had disinherited his daughter was because of the skin colour of the father of her child.

The Court ruled that the deceased’s true reason for disinheriting his daughter was based on a clearly stated racist principle, that this offends public policy, and that accordingly, the will should be set aside.  The result was an intestacy and the estate was split evenly between the deceased’s two daughters.

While there are cases where provisions in a will have been set aside on the grounds that they offend public policy, it is rare for such a step to be taken where there is nothing discriminatory in on the face of the will itself.  However, in the recent McCorkill case in New Brunswick, the Court of Queen’s Bench declared a bequest to the National Alliance, a white supremacist group operating in the United States, to be invalid.  There again, there was no discriminatory language on the face of the will, and the gift was set aside as contrary to public policy on the basis of the poor character of the beneficiary, whose raison d’être, the Court said, is contrary to public policy.

It will be interesting to see what will happen with future cases where racist motivations are alleged.  Will Courts be willing to look beyond the language of a will and explore the motivations behind it?  We will have to watch future developments to see whether the law will continue to move towards intolerance of racial intolerance in wills.

Josh Eisen

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