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Court of Appeal overturns “racist will” decision

by Rob Levesque, Published: March 08, 2016

Last year we blogged about Spence v. BMO Trust Company, a case that was causing a sitr in the estates and trusts bar.

In Spence, the testator made a will that explicity disinherited his daughter.  The daugher sought to set aside the will on the grounds that the testator’s motives for disinheriting her were fundamentally racist: that the testator, who was black, disinherited her because he was displeased that she had conceived a chlld with a white man.   The judge who heard the daughter’s application accepted that the testator had been motivated by his racist views, and held that this evidence was sufficent to render the will invalid, marking the first time in canadian legal history that a will has been set aside on the basis of discriminatory views held by a testator.

The application judge’s decision caused such a commotion among estates lawyers because it contradicted the well established principle of testamentary freedom — that a testator is free to dispose of his estate as he chooses, for such reasons as he sees fit.  If the application judge was correct, then it would mean that testamentary freedom  is limited by the Court’s view of what is or is not against “public policy”.

The Court of Appeal has now weighed in on the Spence case, and has overturned the application judge’s decision.  In doing so, the Court reaffirmed that in Ontario, testators have the freedom to dispose of their estate as they see fit.  This freedom includes the right to disinherit a child for reasons that are explicitly discriminatroy. Thus, the Court held that, even if the testator’s will had explilcity referred to a discriminatory reason for disinheriting his daughter, it would not have been open to the application judge to set it aside.