Tag: BMO v Spence
On June 9, 2016, the Supreme Court of Canada rendered its decisions in applications for leave to appeal two recent cases that have been closely watched by the estates bar.
The Supreme Court has dismissed both applications for leave to appeal the recent appellate decisions, which considered a court’s ability to intervene and set aside a Will or a bequest under a Will for violating public policy.
In Spence v BMO Trust Company, 2016 ONCA 196, the Deceased made a Will that disinherited one of his daughters, Verolin. Although the Will was not discriminatory on its face, Verolin sought a declaration from the lower court that the Will was void and relied on extrinsic affidavit evidence to argue that the Deceased had disinherited Verolin for racist reasons.
The lower court accepted the extrinsic evidence and held that the Will was invalid on the basis of public policy. However, the Ontario Court of Appeal allowed the appeal of the BMO Trust Company, holding that the Will was clear on its face and did not offend public policy. You can read and hear more about the Court of Appeal’s decision, which now stands as the final judgment in this case, on our blog and podcast.
The Supreme Court has also denied leave to appeal the New Brunswick Court of Appeal’s decision in Canadian Association for Free Expression v Streed et al, 2015 NBCA 50 (more commonly referred to as the McCorkill decision).
In McCorkill, the testator left the residue of his Estate to the National Alliance, a white supremacist organization based out of the United States. Much like Spence, there was no discriminatory language on the face of the Will. However, the lower court set aside the bequest to the National Alliance because the purposes and activities of the beneficiary organization were contrary to public policy. The lower court’s decision was upheld on appeal to the New Brunswick Court of Appeal. We have previously written about the McCorkill decision here, here and here.
Spence and the McCorkill are not the only two recent cases where a Will has been challenged for being discriminatory. My colleague Noah Weisberg has reported on a claim in British Columbia where a testator is alleged to have disinherited his daughter on the basis of her sexual orientation.
Thank you for reading,
Umair Abdul Qadir
A recent case arising from British Columbia addresses whether a deceased parent is able to disinherit their child as a result of their sexual orientation.
As outlined in the recent National Post article, found here, a daughter has commenced a claim against her father’s estate on the basis that she was left out of the Will because she is in a lesbian relationship. Specifically, the father’s Will leaves the entirety of his estate to his other children, and nothing to the disappointed daughter.
The disappointed daughter alleges that her parents never accepted her sexual orientation and isolated themselves with her and her long-time partner. For example, the parents did not attend their daughter’s wedding. Apparently, this is the basis for the disinheritance.
Interestingly, this is not the first time the BC Courts have been required to address sexual orientation in Wills. In the 2006 BCSC decision of Peden v Peden, Justice Groves struck down a Will where a deceased father failed to approve of his son’s homosexuality on the basis that, “…homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child”.
Although, the laws in BC and Ontario are different with respect to the requirement of a testator to make adequate provision for spouses and children, given the recent decision of the Ontario Court of Appeal in BMO v Spence, it will be interesting to follow the applicability of sexual orientation to challenging an Ontario Will.