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Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

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Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

Although my law firm focuses primarily on Family Law, we also provide legal advice and services in relation to Wills and Estates, and it’s a topic that I don’t often write about.

But perhaps I should: There is an interesting recent case from the Ontario Court of Appeal, for example, that is certainly worth looking at.

Imagine this scenario: A 71-year old man name Eric had two daughters with his first wife, whom he later divorced. After their parents’ separation, one of the daughters went to live with her mother in England; the other, named Verolin, lived with her father in Canada.

But when Eric, who was black, learned that Verolin was pregnant and that the baby’s father was a white man, it caused a permanent rift in their relationship; eventually Eric cut Verolin off entirely and never met his grandson, who is now 13 years old.

After Eric died, his Will revealed that although he had included the other daughter and her children, he had specifically excluded Verolin, ostensibly because (according to the wording in the Will itself) she had shown “no interest in [him] as her father.” However, the extrinsic evidence from witnesses told a different story: Eric had actually excluded his daughter Verolin in order to show his disapproval of the fact that her son’s father was white.

Verolin applied to the court to have the Will declared set aside and declared invalid because it was against public policy on racial grounds. Verolin was initially successful in the lower courts.
On appeal, the court reflected on the basic question of whether it was entitled to scrutinize Eric’s Will – which was unambiguous on its face – merely because a potential beneficiary like Verolin was being excluded.

In this regard the Appeal Court pointed out that a “testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle”, and that this testamentary autonomy “should not be interfered with lightly, but only in so far as the law requires.” With that said, the court added that the testator’s right can still be constrained by public policy considerations in some circumstances.

But even applying those general principles here, the fact remained that the wording on the face of Eric’s Will was not, in and of itself, legally objectionable. It adverted only to cutting off Verolin for not communicating with him; any other racially-discriminatory motives on Eric’s part were hinted at only through external evidence. Plus, even though she was his daughter, under Ontario law Verolin was not entitled to demand a share of Eric’s estate. Nor was there anything in the Will that called for the trustees or beneficiaries to act in a way that was discriminatory, unlawful, or contrary to public policy, in order to give effect to Eric’s wishes.

In ultimately upholding Eric’s Will, the Court of Appeal concluded:

I conclude that to apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law. Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.

Do you agree with the Court’s ruling?

For the full text of the decision, see:

Spence v. BMO Trust Company, 2016 ONCA 196

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.