Discriminating Will

Subject to a few exceptions, Ontario law has historically permitted testators the freedom to choose their beneficiaries.  However, a decision last year, which is currently under appeal to the Court of Appeal for Ontario, has the potential to significantly encroach upon testamentary freedom.
The Ontario Superior Court of Justice decision in Spence v. BMO Trust Company, 2015, ONSC, 615 (CANLII) (“Spence”), may cause will drafting solicitors pause to consider whether a testator’s wishes to exclude a beneficiary may be motivated by or grounded in racial discrimination. 
In Spence, the Court found a will to be invalid on the basis that the testator was motivated by racism and that this offended public policy, notwithstanding that the will itself contained no statements about race or, for that matter, any statements that would contravene public policy. 
The testator was a rector who had two daughters namely, Verolin and Donna.  The evidence before the Court suggested that Verolin lived with her father from time to time, was close to him, and provision was previously made for her in her father’s will.  However, the relationship between Verolin and the testator ended when Verolin advised the testator that she was pregnant and that the father of the child was Caucasian.   The testator and his daughter were black. 
According to Verolin’s evidence and that of a neighbour, the testator, due to the race of her son’s father, was motivated to change his will to exclude Verolin and include his other daughter and her two sons, as the father of those sons was black.  The will stated that the reason for Verolin’s exclusion was that she had no communication with the testator for several years and had shown no interest in him.  On the face of the will, there appeared to be no ambiguity or uncertainty.  In setting aside the will, which resulted in an intestacy, the Court looked not at the intention of the testator, as this appears to have been clear in the will, but at the reason (beyond the reason stated in the will) as to why the testator excluded Verolin. 
Historically, Courts have recognized a broad discretion on the part of testators to choose beneficiaries, subject only to a few exceptions.  In the event of inadequate support for dependents, schemes to benefit from crimes, Perpetuities Act and creditor protection considerations, Courts have intervened.  While there have been rare cases where Courts have intervened on public policy grounds to disallow property dispositions on discriminatory grounds, the decision to invalidate a will based upon discriminatory motives for the testamentary disposition of property seems to have taken the common law into new territory.
What is also of note in the Spence case is that the property rights in question were private in nature.  This is interesting as there are other instances where certain allowances are made for sanctioned public discrimination, not on the basis of race, but on the basis of religion.  For example, certain cases and legislative provisions seem not to restrict funding or charitable trusts that promote certain religions and even certain discriminatory beliefs with respect to marriage. 
While some may say that the decision in Spence would apply only in rare circumstances, the Spence case was preceded by only several months with the New Brunswick Queens Bench case of McCorkill v. McCorkill Estate, 2014, NVQB 148, affirmed 2015 CANLII 14497 (NBCA) (“McCorkill”) where it had been noted that the case was unusual.  In McCorkill, once again there was no ambiguity in that the will provided for a specific legacy to an organization considered to be racist.  In other words, the McCorkill decision essentially provided that the testator cannot give to a beneficiary on the basis of racism and the Spence decision provides that a testator cannot exclude a beneficiary on the basis of racism.
The Spence decision has been argued at the Court of Appeal and a decision is pending.  It will be interesting to see how far the Court of Appeal is prepared to let Courts go in policing and supervising the motivation of the choices made by testators.  Until such time as we see the Court of Appeal decision, it may be wise for drafting solicitors who suspect racial motivations for their clients’ choices to explain the risks before drafting the will.
Mark Abradjian
Mark Abradjian
P: 905.572.5841