Wills, Controversial Wishes, and Public Policy
The Court of Appeal has reinstated the controversial final wishes of Eric Spence, after his will came under fire in the recent case of Spence v BMO Trust Company for offending public policy.
Mr. Spence left the entirety of his estate to the younger of his two daughters, Donna. At the time of his death he had not seen Donna in decades; leaving her and her mother behind in England when he immigrated to Canada with his elder daughter, Verolin Spence. Upon her father’s death, Verolin and her son received none of Mr. Spence’s inheritance. The reason Mr. Spence stated in his will for the disinheritance was that his daughter “has had no communication with me for several years and has shown no interest in me as her father.”
Verolin Spence challenged the will, claiming that she had not been disinherited as a result of her lack of communication with her father; she had been disinherited due to her having a child with a Caucasian man. Her sister did not contest the will challenge.
In 2015, a Newmarket court ruled in Ms. Spence’s favour, finding that the reason for disinheriting Verolin Spence was based on a clearly stated racist principle. The allegations of racism were based on an affidavit of evidence provided by Verolin Spence, as well as from third party evidence from a family friend, supporting Verolin Spence’s claim.
The judge stated that granting the entirety of the estate to only one daughter, simply because Verolin Spence’s children were fathered by a Caucasian man, offends both human sensibilities and public policy, where—in rare situations—Canadian law will step in to set aside the will.
The Court of Appeal has now overturned this decision, stating that the third party evidence of racist motivations should not have been admissible. Though Ms. Spence is currently seeking leave to appeal to the Supreme Court of Canada, the current ruling raises concerns regarding the potential for Canadians to easily challenge a will via litigation should they not receive the inheritance to which they believe they are entitled.
“I don’t think a reasonable lawyer would wish to put their client or the estate at risk of possible litigation by disinheriting a child based on racist motivations.”
David Freedman, a law professor at Queen’s University with a comprehensive background in trusts and wills and estates, discusses his reaction upon first hearing about the Spence case.
“I thought that (the case) raised an interesting argument, but this is perhaps not the right case for that argument. I want to be judicious bearing in mind that the case is under appeal, so I know that record has been sought.”
Professor Freedman said the case could have an impact on how wills could be handled by displeased beneficiaries in the future.
“My concerns are that this is a big step forward with estate litigation. The key finding is that the testator disinherited the daughter based on racial enmity. This comes from an affidavit of evidence from the applicant and a third party, and that’s all. I think it’s an interesting argument. I don’t think this is the best case for it.”
Whatever the outcome, the current media attention surrounding Spence v BMO Trust Company is likely to continue. Until the SCC decides whether or not to hear the case, the law regarding a person’s ability to challenge a will remains unclear, which complicates the situation for lawyers advising clients who are attempting to write out their wills.
With the law currently up for review, lawyers may find it difficult to properly instruct a client who wishes to disinherit a family member. Though he does not draft wills for his clients, Professor Freedman explains how he would handle such a quandary if it presented itself. “I think that any reasonable lawyer would refuse a retainer like that,“ he said.
“I think the law is so uncertain that a reasonable lawyer would explain to his or her client that what they are asking will likely give rise to estate litigation, and that it is not in the beneficiary’s best interests to disinherit a child based on considerations contrary to public policy. I don’t think a reasonable lawyer would wish to put their client or the estate at risk of possible litigation by disinheriting a child based on racist motivations.”
Canada has a complicated history dealing with allowing courts to make changes to wills.
The Ontario case, Fox v Fox Estate, presented a similar issue. In this case, an elderly man died and left his wife as his trustee, with his son and grandchildren being his beneficiaries. When the son married outside the Jewish faith, his mother exercised her discretion as trustee to bypass her son and distribute the estate directly to her grandchildren.
In Fox v Fox Estate, the court ruled that a trustee should not exercise discretion on grounds that are not rationally connected to the nature of the obligation that they hold. The court was willing to interfere with a trustee’s decision based on religious discrimination, though in that situation there existed wider considerations with respect to the administration of a trust.
Until the SCC either determines the case or refuses leave to appeal, challenging a will based on racial or religious discrimination remains a legal grey area. Should such challenges against a will be deemed valid, the possibility exists for a large number of will challenges via litigation by displeased beneficiaries. This has the potential to flood to an already crowded court system.
According to Professor Freedman, this “opens the door for a lot of litigation, some of which may be frivolous,” he said. “I think the reasons of the applicant were rather scant in the pragmatic, practical implications of her judgment.”
The recent decision by the Court of Appeal has gathered considerable media attention. This, according to Professor Freedman, could have a significant impact on the field of estate litigation.
“It publicizes the seriousness by which people make wills, and the seriousness by which courts consider and are protective of wills, which is a good thing. Beyond that, I’m not concerned.”
Matthew Cook (3L) is a contributor to Juris Diction