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Testamentary Freedom in Ontario

Wills-Estates-LawIf you die without a will, the law decides what happens to your assets. If properly executed, your will should ensure that your estate is distributed according to your wishes (subject to the potential of dependant support relief claims). The ability to distribute your estate as you see fit is known as testamentary freedom.

The recent Ontario Court of Appeal case of Spence v. BMO Trust highlights the importance of a validly executed will and the limits and strengths of testamentary freedom. Verolin Spence argued that the will of her late father, Rector Emmanuel Spence (more commonly known as Eric), should be declared invalid as its provisions were motivated by racist beliefs and were contrary to public policy. Eric Spence had explicitly disinherited his daughter because, according to him, she had no interest in him as a father, and left his estate to his other daughter who also had no relationship with her father. According to Verolin, her father ended his relationship with her when she announced she was pregnant with the child of a white man. Eric and Verolin were estranged for 13 years prior to his death.

The Ontario Superior Court accepted the argument that Eric’s motivations were racist, and that racist intent was a sufficient reason to void a will for being contrary to public policy. The estate would then have then been divided as if he had no will, and would have equally benefitted Verolin and her sister Donna who was completely estranged from both Verolin and Eric.

The Ontario Court of Appeal reversed the decision in Spence, and reinstated Eric Spence’s will. The terms of Eric Spence’s will were clear, and did not require the Court’s interpretation to apply. The Court of Appeal came down strongly in favour of testamentary freedom. They found that even if Eric Spence’s will had explicitly stated the racist or discriminatory reasons for disinheriting his daughter, the will would still be valid, as it represented the private intentions of an individual to dispose of their property as they saw fit.

The Courts have upheld decisions striking down portions of a will before. However, this has been limited to occasions where the gift was going to benefit a person or group with an admittedly criminal purpose or where the gift was to create a public trust on discriminatory and racist grounds. The gift benefitting a criminal purpose and the direct involvement of the courts with respect to a public trust were sufficient to establish that those provisions should be void for public policy.

Estate planning can be a complicated process. At Daniel & Partners LLP, we offer a full range of services from wills, to powers of attorney, to trusts and guardianship matters. We also can assist with and in defence of dependant support relief claims. Our experienced team will assist you and help to ensure that your wishes for how your estate is divided after your death are fulfilled.

To book an appointment to have a will prepared or for assistance in any estate law matters, contact the Wills and Estates lawyers at Daniel & Partners LLP.

Blog post written by Karen Shedden, NCA Candidate

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