Is Discrimination a Restriction on Testamentary Freedom?

March 10, 2016 Lisa-Renee In the News, Litigation, Public Policy, Wills Tags: , , , , , , , 0 Comments

Last year, Spence v. BMO Trust Company, 2015 ONSC 615 was one of the most significant estate cases of 2015.  In Spence, the testator made a Will that unambiguously and unequivocally disinherited one of his daughters.  The disappointed daughter applied to the Ontario Superior Court of Justice for an order setting aside the Will on the ground that she was disinherited solely because she had a child with a white man.  A third party swore an affidavit corroborating the Applicant’s evidence that her father disinherited her for reasons that were racially discriminatory.  Justice Gilmore accordingly set aside the entire Will on the basis that it was contrary to public policy against racial discrimination.  The Respondent BMO Trust Company appealed the decision.
FamilyThis week, the Ontario Court of Appeal released its long awaited ruling in Spence v. BMO Trust Company, 2016 ONCA 196.  The Court of Appeal overturned Justice Gilmore’s decision, stating that the principle of testamentary freedom to choose one’s beneficiaries is generally immune to judicial scrutiny.

In reaching its decision, the Court of Appeal appears to have significantly restricted the scope of the public policy doctrine in estate cases.  Simply put, a Will that does not impose any conditions that, on its face, offend public policy appears to be valid regardless of the testator’s intentions.  Thus, the Court in Spence found that the testator was free to disinherit his daughter even if his intention appeared to be racially discriminatory.

It remains to be seen whether the Applicant will seek leave to appeal to the Supreme Court of Canada.

To hear an interesting discussion about the earlier decision in this case check out Hull on Estates podcast #404

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