Subscribers may recall a post last year about a controversial case - Spence v BMO Trust 2015 ONSC 615 - in which the Ontario Superior Court of Justice struck a will on the basis of public policy.  That decision was overturned this week by the Ontario Court of Appeal (2016 ONCA 196).

 

In brief, the testator excluded from his will one of his adult daughters.  The will indicated this was due to an extended lack of communication.  However, the court admitted extrinsic evidence (an affidavit from a family friend) indicating that the exclusion was due to the testator's disapproval of the excluded daughter having conceived a child with a Caucasian man.  In a judgment vindicating the familiar criticism that public policy can be an "unruly horse", Justice Gilmore struck the entire will on the basis that the testator's discriminatory motive offended "not only human sensibilities but also public policy." (para 49) 

 

The decision was widely criticized on a number of grounds.  It misused the doctrine of public policy as a tool for judicially imposed forced heirship.  It offered no explanation as to how there could be an improper basis on which to withhold an inheritance from an adult daughter not entitled to share in her father's estate.  It was not supported by the authorities cited in the judgment (one of which specifically said it was confined to the context of charitable trusts).  It would open the floodgates of estate litigation.  It undermined the most fundamental feature of testamentary freedom - choice of estate beneficiary.

 

The judgment of the Court of Appeal affirmed the self-evident proposition that testators are not obligated to benefit persons they are not obligated to benefit.  It also addressed a number of issues relevant to discrimination in wills and trusts, including the following: