“A testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle” stated the Ontario Court of Appeal in Spence v BMO Trust Company (“Spence”) on March 8, 2016. In this case, the Court of Appeal reviewed an earlier decision by the Superior Court of Justice (“Superior Court”) to set aside the last Will and Testament (“Will”) of Eric Spence (“Eric”) because it was determined to violate public policy against racist discrimination. The Superior Court’s decision in this matter had been based on extrinsic evidence provided by Eric’s daughter, Verolin Spence (“Verolin”), as well as Eric’s long-term caregiver, that Verolin and her son, A.S., were excluded from Eric’s Will on grounds which were contrary to public policy. Specifically, based on the extrinsic evidence, Verolin alleged that her once good relationship with her father, who was black, turned cold after she told him that the father of her child was white. However, Eric’s Will specifically stated that his reason for excluding Verolin was because “she had no communication with me for several years and has shown no interest in me as her father.”
The Superior Court Application Judge hearing the matter had held that while, on its face, the Will did not offend public policy, the extrinsic evidence showed that Eric’s intention in excluding his daughter and grandson was based on a “clearly stated racist principle,” and offended “not only human sensibilities but also public policy.” While the Court of Appeal conceded that the case law shows that “Canadian courts will not hesitate to intervene on the grounds of public policy,” it held that the occasions for doing so are limited to those where the testator’s wishes in his or her will result in implementation by an executor or beneficiary that is contrary to public policy. Some examples of such circumstances would include those where the implementation of a will would facilitate purposes contrary to human rights or criminal laws, or where there is an explicit reason in a trust that is discriminatory where that trust is public or quasi-public in nature. By contrast, in a case where an individual’s will does not, on its face, offend public policy, the Court of Appeal held that courts should not use extrinsic evidence to interfere with the testator’s testamentary freedom.
Specifically, the Court of Appeal stated that “[a]bsent valid legislative provision to the contrary, the common law principle of testamentary freedom thus protects the testator’s right to unconditionally dispose of her property and choose her beneficiaries as she wishes, even on discriminatory grounds.” The Court concluded that to apply the public policy doctrine to void and unconditional bequests in cases, such as this one, would be to effect a “material and unwarranted expansion of the public policy doctrine.”
In light of this decision, it remains to be seen whether the Ontario government will enact legislative provisions to place defined limits on testamentary bequests or instead will continue to defer to the common law rule of testamentary freedom.