wills and estates

Court of Appeal Rules on Testamentary Freedom

signing papers

From Spring 2016:

Estate Litigation lawyers were sad when the Ontario Court of Appeal recently overturned a lower court decision and effectively squashed estate litigators’ hopes of increased business litigating Wills.

The case is now famously known as the Spence Decision (Spence v. BMO Trust Co).

The case was about the validity of a Will in which a father excluded one of his two daughters. He specifically wrote:

“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.”

After the father died, the same daughter went to court and alleged that the real reason her father didn’t leave her money was because the father of her baby was white (the deceased

testator was black). The daughter called on the trial court to set aside the Will.

Affidavit evidence supported the daughter’s allegations and the lower court concluded that the Will, despite not offending public policy on its face, should be set aside. The result is that the will is void resulting in an intestacy (that is, dying as if there was no will). The estate would be split between the father’s two daughters.

The Court of Appeal disagreed with the lower court and decided that the Will should not be set aside and that the daughter challenging the will should not inherit. The Court of Appeal stated:

“The court’s power to interfere with a testator’s testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator’s testamentary choices as distasteful, offensive, vengeful or small-minded.”

Do you think the Court of Appeal got it right?

In recent years there has been quite a bit of debate surrounding testamentary freedom. Some people are of the opinion they should be able give their hard-earned money to the persons and causes of their choice; that a parent should have the choice to leave money to their kids, or not to leave money to their kids; that a dog owner can leave money for the care of their dogs; that a husband can leave money to his mistress.

If you haven’t made a Will consider calling us and booking an appointment to review your wishes. Without a will, your assets will be administered in accordance with intestacy laws.

We can be reached directly at 416-224-1996 ext 217 or by email at ">.

Ashley Doidge (Associate) and Eric Gossin (Managing Partner).

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