In January 2015, the Honourable Justice Gilmore of the Ontario Superior Court of Justice rendered the decision of Spence v. BMO Trust Company, 2015 ONSC 615, which set aside a Will as being invalid on the grounds of being contrary to public policy as it was discriminatory on racist grounds. The case is a good reminder of the limitations on testamentary freedom in Ontario, and what the court might be willing to consider where there is strong evidence that a Will, or the intentions behind it, might violate public policy.
Rector Emanuel Spence (the “Deceased”) passed away at the age of 71 in 2013. He was widowed and had two adult daughters, Verolin and Donna, from a first marriage.
When the Deceased and his wife separated, Verolin lived with the Deceased while Donna lived with her mother in the United Kingdom. Verolin and Donna were estranged from each other from that point onwards and had no communication whatsoever for the entire time that they lived with different parents. Donna was also estranged from the Deceased and the Deceased never expressed any desire to see her or resume contact.
In 1979, the Deceased immigrated to Toronto, Canada and Verolin followed a few years later to attend university. The Deceased supported Verolin in her undergraduate studies, post-graduate program, graduate school and law school in the United Kingdom, United States and Canada until 1997. They lived together on and off in a home in Maple, Ontario, and maintained a healthy father daughter relationship.
In 2002, Verolin told the Deceased that she was pregnant and that the father was Caucasian. The Deceased told her that he was ashamed of her and that he would never allow a white man’s child into his home. From then onwards until his death, the Deceased restricted his communications with Verolin and refused to have anything to do with his grandson, Alexander, despite the many efforts of Verolin to reconcile.
The Deceased’s last Will in 2010 included a provision which disinherited Verolin, which stated:
I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.
The Will directed that The Bank of Montreal be appointed as estate trustee and the estate was to be distributed to Donna and her two minor children. Verolin and her minor son commenced an application with the Court to set aside the Will, with the provision above at issue.
The issue in Spence was whether the Deceased’s Will was void on the ground of being contrary to public policy. Verolin and her son argued that the Will should be set aside entirely based on extrinsic, uncontested affidavit evidence indicating a discriminatory intention behind their disinheritance. On the other hand, BMO argued that the Will was valid because the provision above was not manifestly contrary to the public interest.
In its decision, the Court examined extrinsic evidence from both Verolin and the Deceased’s former wife’s best friend, Imogene Parchment, who provided evidence that the Deceased excluded and disinherited Verolin and her son because the father of her son was white and that he had no use for her “bastard white son”. It was clear from the evidence of Ms. Parchment that the only reason Donna and her sons were included in the Deceased’s Will was because he wanted to discriminate against Verolin for having a child with a man who was not black.
The Court found that while the provision in question was not racist and did not openly offend public policy on its face, more scrutiny was required into its rationale. One consideration was that Ms. Parchment had no stake in the estate whatsoever and there was therefore no reason to not accept her evidence as true. Moreover, there was nothing to establish that Verolin had a poor relationship with her father before he learned about her son’s parentage.
The Court concluded that this evidence expressed a very specific reason for cutting Verolin and her son out of the estate; it was that Verolin had a child by a man who was not black. From the moment that the Deceased discovered this, he stopped all communication with Verolin despite many efforts on her part.
Furthermore, the Court took notice that Donna did not file a Notice of Appearance or attend the hearing of the application even though she had been properly served. There was therefore no evidence to contradict the evidence provided by Verolin and Ms. Parchment indicating a racist and discriminatory rationale behind the Will provision in question.
The Court agreed with Verolin and set aside the entirety of the Will based on this reasoning. The resulting intestacy divided the Deceased’s estate equally between Verolin and Donna.
Generally speaking, Ontario is a jurisdiction that holds testamentary freedom in high regard. The courts usually go to great lengths to give effect to a valid Will unless a spouse makes an election to receive their share of net family property instead of their interest under a Will, a Will fails to make adequate provision for certain qualifying dependents, or the terms of the Will are against public policy.
Traditionally, the public policy limitation on testamentary freedom was only available where the terms of the Will itself were against public policy. This case illustrates that extrinsic, unopposed evidence shedding light on a testamentary intention that is contrary to the public interest is enough to strike out a Will as void. In its decision, the Court noted that “were it not for the unchallenged evidence of Ms. Parchment and Verolin, the court would have no alternative to go no further than the wording in the will.” Even though the Deceased in this case took care to omit discriminatory comments in his Will to explain the exclusion of Verolin, the Court decided to scrutinize further, draw on evidence outside of the Will and admit facts into its analysis of whether the provision did indeed offend public policy sensibilities.
Spence shows us that a court may look beyond the words of the testator in the Will to interpret his or her intention. It is a new departure on part of the courts to delve deeper into the minds of testators where there is a risk that enforcement of certain provisions that aim to mask true testamentary intentions will contravene public policy.
At the time of this newsletter, the case has been appealed to the Court of Appeal and we are awaiting a decision, so please stay tuned.
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