From: Adam Parachin <>
Date: 30/01/2015 15:18:05 UTC
Subject: Public Policy and Wills - Spence v BMO Trust Co

Subscribers might recall some posts last summer about McCorkill v Streed 2014 NBQB 148, a controversial case in which the New Brunswick Court of Queen's Bench struck an unconditional bequest to a racist corporation on the basis of public policy.
Well, McCorkill was just taken one step further by the Ontario Superior Court of Justice in Spence v BMO Trust Co, 2015 ONSC 615 (CanLII).  In an eye-opening judgment, Justice Gilmore reasoned that it is against public policy for a testator to exclude an adult child from his or her will for a discriminatory reason. 
The testator was survived by two adult daughters.  He left nothing in his will to one of the daughters, expressly stating in the will that this was because the excluded daughter had not communicated with him for several years.  
Relying on affidavit evidence, Justice Gilmore concluded that the real reason was that the testator disapproved of the excluded daughter having had a child with a white man.  It was held in paragraph 49 that this discriminatory motive "offends not only human sensibilities but also public policy".  The will was struck with the result that the surviving daughters shared the estate equally on intestacy.  
The case raises some serious concerns.  Given that the testator's daughter was not entitled to share in her father's estate in the first place, it is not obvious why the testator's motive for excluding her from the will has any relevance whatsoever.  She cannot be improperly deprived of something to which she was never entitled. 
Testamentary freedom is above all else the freedom to determine who will share - and who will not share - in the testator's estate.  There is no normative estate distribution in our law from which testators may only depart for "good" reasons. 
The only cases cited by Justice Gilmore in support of the holding were Canada Trust Co v Ontario Human Rights Commission and McCorkill v Streed.  Neither case lends any support to the outcome in Spence.
The upside is that we have a growing body of estates cases illustrating for students the familiar criticism that the doctrine of public policy is "an unruly horse". 
Adam Parachin
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445