Ontario Superior Court Sets Aside Will for Public Policy Grounds: Spence v BMO Trust Company

Last month, in Spence v BMO Trust Company, 2015 ONSC 615 [Spence], the Ontario Superior Court of Justice set aside a will for being contrary to public policy, as the testator’s motivation for excluding one his daughters from his will was racially motivated.

Facts

Rector Emanuel Spence passed away in 2013 and his only decedents are two adult children from a previous marriage: Verolin Spence and Donna Spence. Verolin had one son while Donna lives in the United Kingdom and has two children.

When Rector Spence separated from his first wife, Verolin lived with him while Donna lived with their mother. This living arrangement continued, and both siblings did not communicate with each other. It is clear from the facts that Donna and Rector were estranged. Rector immigrated to Canada in 1979 while Verolin continued her studies in London, United Kingdom but later also immigrated to Canada. Verolin pursued further education in Canada and abroad, all the while supported by her father. After returning to Canada in 1992, she resided with her father in Maple, Ontario, where Rector advised Verolin that his will left the residence to her.

In 2002, the relationship became strained when Verolin told her father that she was pregnant and that her child’s father was Caucasian. Their contact became sparse and this continued until Rector’s death in 2013. Rector’s last will and testament dated May 12, 2010 included the following clause: “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.”

Verolin applied to the Superior Court to have the will declared void on public policy grounds.

Analysis

The Bank of Montreal (“BMO”) was appointed as estate trustee and one of the respondents in this application. It argued that the will could not be void for public policy, because the will did not explicitly state a motivation contrary to public policy.

In the leading case on the public policy principle, Canada Trustco v Ontario (Human Rights Commission) (1990), 74 OR (2d) 481, Reuben Wells Leonard attempted to create a trust for the purposes of distributing scholarships, but the trust document explicitly had provisions requiring that the scholarships be awarded to individuals that were “white, Christian, of British nationality or parentage and that only twenty-five per cent of the recipient of the scholarships could be women” (para 36). Given that the trust was based on “notions of racism and religious superiority” the Ontario Court of Appeal struck out the impugned discriminatory language (para 37).

In contrast, in the cast at bar, there was no explicit language contrary to public policy, and, more specifically, nothing indicating that Rector’s motivation to exclude Verolin was due to the fact that his grandchild was fathered by a Caucasian man.

In response to these facts, Verolin pointed to McCorkill v Streed, Executor of the Estate of Harry Robert McCorkill, 2014 NBQB 148 [McCorkill]. In this case, the New Brunswick Court of Queen’s Bench held that the transfer of the McCorkill estate to the National Alliance was void for public policy as the National Alliance had a history of encouraging hate crimes. BMO subsequently noted that the result of this case was not only controversial but also factually distinguishable. While there were obvious problems with bequeathing the funds to the National Alliance, the same could not be said for Rector giving his estate to Donna and her children in the United Kingdom.

Here, Justice Gilmour held that, while on its face the will did not violate public policy, it was necessary to examine the instrument more closely. Imogene Parchment was a long time family friend of Rector Spence, who provided affidavit evidence that, “[Rector] told her on several occasions that the reason he disinherited Verolin and her son was because the father of her son was white. He told her that he changed his will on May 12, 2010, because he wanted to exclude Verolin and include Donna and her two sons, since the father of Donna’s sons was black” (para 26).

Ultimately, Justice Gilmour declared the will void, writing that: “Were it not for the unchallenged evidence of Ms. Parchment and Verolin, the court would have no alternative but to go no further than the wording in the will. However, it is clear and uncontradicted, in my view, that the reason for disinheriting Verolin, as articulated by the deceased, was one based on a clearly stated racist principle” (para 49).

Voiding the will resulted in an intestacy under the Ontario Succession Law Reform Act, RSO 1990, c S.26, so that the estate is split equally between the two sisters.

Choice and the Courts as Arbiter of Public Policy

Both this case and McCorkill are laudable for the fact that the judiciary has stepped in to prevent a gift that was motivated by racist intentions and a transfer to a group with sinister operations, respectively. However, two items should be noted.

First, the holdings of both cases are particular to their factual contexts. In McCorkill, the court was able to look at the explicitly hateful comments in the books published by the National Alliance. Further, here in Spence, Justice Gilmour notes that he is only able to make his finding due to the affidavit evidence provided by Ms. Parchement, or else he would have had to dismiss the application given the express terms of the will.

Secondly, despite the contexts of both decisions, the tension between personal choice and the judiciary’s discretion to intervene comes into play. It could be argued that decisions such as this open the floodgates to family members who are unhappy with what their family members have left them after passing away, leading them to challenge those wills on a number of grounds they subjectively feel are contrary to public policy.