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Thursday, January 29, 2015

Judge rejects Ontario man's 'racist will' that disinherited daughter for having 'bastard white son'

The Ontario court has made a new, interesting ruling. It concerns the will of Rector Emanuel Spence, who died in 2012. Mr. Spence had two daughters. He had an excellent relationship with his daughter, Verolin, but ended that relationship in anger and bitterness when his daughter revealed in 2002 that she was pregnant, and that the child's father was Caucasian.

Mr. Spence, who was Jamaican-born, called the child a "white bastard" and swore  he would not have a white man's child in his home. He cut Verolin out of his will and left everything to his other daughter, from whom he was more or less estranged.

After Mr. Spence's death, Verolin challenged the will on the ground that it violated public policy. The challenge was successful; the judge determined that the will was based on a racist principle and divided the estate equally between the two daughters. To read a more detailed version of this story, click here to see an article in the National Post. The full name of the case is Spence v. BMO Trust Company, 2015 ONSC 615.

All wills written in Canada are subject to legal rules that are collectively called "public policy". Though most people have never heard of these rules, and in fact are often surprised to find that they can't say whatever they want in their wills, the rules affect all of us. The public policy rules are in place to ensure that wills (or parts of them) are not valid if they are contrary to the good of the public. Wills cannot give or withhold inheritances based on concepts that are held to be contrary to Canadian values.

For example, a parent cannot give a child an inheritance on the condition that the child never marry, as it is contrary to public policy to prevent people from marrying. Another case in which the Ontario court considered public policy involved a trustee who refused to fund a beneficiary's inheritance because the beneficiary was involved with someone of a different religion (Fox v. Fox Estate, 1996 CanLII 779). In a case from British Columbia, parents wished to disinherit a child because he was homosexual (Patterson v. Lauritsen (1984 CanLII 353). In Saskatchewan, the estate of Robert McCorkell was challenged on the basis that he wanted to leave a huge sum of money to an organization that promoted hate against certain groups of people.

Another interesting aspect of the Spence case is that the will itself doesn't say anything racist. It says that Verolin was cut out of the will because of the lack of communication between Verolin and her father. All of the facts about the dispute between father and daughter - and the racist reasons for it - were provided by people other than the testator.

If you are planning to leave someone out of your will because you don't approve of their lifestyle, perhaps it would be a good idea to discuss your plans with an experienced wills and estates lawyer.

1 comment:

  1. Dear Lynne,
    You stated in your book for beneficiaries on page 40 that a surviving joint tenant needs to have the deceased tenant's name taken off title. If this is not done, when the surviving joint tenant passes away then both wills would have to be probated to sell the property. Is this the law for all provinces, including Ontario, or just certain provinces? Thanks for your book!


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