Appeal court rules “racist” will should not have been invalidated

The lower court ruled that Spence’s reason for disinheriting his daughter was “based on a clearly stated racist principle” and that the provisions of the will that excluded her offended “not only human sensibilities but also public policy.”

The lower court judge set aside the will in its entirety, “on the basis that it violated public policy against discrimination on racial grounds,” the appeal court noted. The court declared that Spence had effectively died without a valid will and, as a result, the estate was to be divided equally between his two daughters under estates law.

BMO Trust, which was appointed executor of the estate, appealed the judge’s decision to set aside the will on public policy grounds, arguing that the ruling interfered with Spence’s freedom to dispose of his assets as he wished.

The appeal court sided with BMO Trust, ruling that there is nothing in the will itself that offends public policy, or violates the law: “The will does not require BMO Trust to engage in discriminatory or unlawful conduct in order to carry out [Spence’s] testamentary intentions.”

Moreover, the court found that even if the decision to disinherit his daughter was racially motivated, he should not be prevented from doing so. “It must be remembered that the bequest at issue is of a private, rather than a public or quasi-public, nature,” the appeal court said.

So, even if Spence disinherited his daughter for discriminatory reasons, “the bequest would nonetheless be valid as reflecting a testator’s intentional, private disposition of his property — the core aspect of testamentary freedom.”

The court found that interfering with a person’s freedom to dispose of their assets, and to choose their beneficiaries, would unreasonably expand the court’s jurisdiction into private estates matters.

“To apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law,” the appeal court concluded.

“Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom,” the court’s decision added. “The need for a robust application of the principle of testamentary freedom is especially important, in my opinion, in the context of a testator’s central right to choose his or her residual beneficiaries.”

The court allowed the appeal and overturned the lower court’s decision invalidating the will.