On June 9, 2016, the Supreme Court of Canada denied leave to appeal in the case of Spence v BMO Trust Company (“Spence Case”). As a result, the Ontario Court of Appeal decision of Spence v BMO Trust Company, that was reported on in our March 2016 Update remains the law in Ontario. The Spence Case arose out of a dispute between Eric Spence’s estate and Verolin Spence, Eric’s daughter (“Verolin”), when Verolin was excluded from Eric’s Will. The claim made by Verolin was that her exclusion from the Will was made on a discriminatory basis, specifically because she had a child whose father was white and that Eric disapproved of her decision in this regard. In particular, Verolin claimed, on the basis of extrinsic evidence, that Eric’s intention in excluding her from his Will was based on a “clearly stated racist principle,” and offended public policy. However, according to the Court of Appeal, the Will did not express such an intention.
The Ontario Court of Appeal stated that “[a] testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle” and 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.” In coming to this decision, the Court of Appeal sent a clear signal that it will continue to uphold testamentary freedom in private will cases concluding that to apply public policy doctrine to void unconditional bequests would be to effect a “material and unwarranted expansion of the public policy doctrine.”