All About Estates

Revisiting Spence v BMO and the case of Discriminatory Wills: Why the saga should not be over

By: Giancarlo Mignardi, Summer Law Student


Two years later and, given the absence of any further noteworthy cases on point, including a Supreme Court decision, this blogger believes that further discussion about discriminatory wills is warranted.

In Spence v BMO Trust Company,[1] the Ontario Court of Appeal (“ONCA”) delivered a strong statement in support of testamentary freedom by concluding that: (1) it is not open to courts of construction to scrutinize an unambiguous and unequivocal disposition in a will, with no discriminatory conditions or stipulations, even if a beneficiary claims that the underlying motives of the testator defy public policy; and (2) third-party extrinsic evidence of the testator’s purportedly discriminatory motives are inadmissible in such circumstances.[2] In other words, the current state of the law seems to be that, so long as a racist or otherwise discriminatory testamentary disposition is free of expressly discriminatory conditions, a court will refuse to interfere on public policy grounds.

Surely, the law of testamentary dispositions can do more to strike a better balance between discrimination and testamentary freedom. In Spence, the latter principle was protected to the complete detriment of the former, and this blogger believes this to be unfortunate. With that said, striking a better balance is not simple. The opposite scenario––one that would see testamentary freedom undermined absolutely in situations where the testator’s intentions are found to be discriminatory––would perhaps be equally unacceptable (more on this below). So, what to do?

For one, to better appreciate that public policy must play a larger role in this area, the law’s understanding of what comprises the essence of a will may need changing. Consider, for one, Lauwers JA’s view as it is expressed in Spence—here, his Honour stated that a will is purportedly a “private act of personal expression”. This is not new—most introductory treatises to the law of wills tend to describe wills as such. Yet, is this the full picture?  Consider what Lauwers JA’s colleague, Gillese JA, said about this at para 118 of the ONCA’s Neuberger v York[3] decision:

“[a] will … is more than a private document. … [A] dispute about a will’s validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator’s true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated.

Gillese JA’s definition is comprehensive and reflective of the weighty role that a will plays in our society. While, yes, a will is drafted for reasons having to do with private benefaction, its effects and implications go far beyond that realm, particularly given the fact that it is a document that receives public validation by the state itself, through its courts. Insofar as this is true, then, I believe that the conclusions drawn in Spence regarding the relationship between testamentary freedom and discrimination require revisiting. A better balancing act between these two foundational components of our law should be possible and, indeed, should be explored.

To be sure, I do acknowledge that we must proceed with caution, as it may well be equally problematic if it became the case that testamentary freedom were trammelled in every instance where beneficiaries are not provided for in equal fashion. For example, as Robin Spurr has pointed out, “what if a parent did not leave a gift, or a sufficient enough gift, for an independent adult child because the child struggled with a drug addiction and was liable to squander his inheritance? Addiction is a mental illness and therefore the will may be found to be discriminatory on the basis of disability.”[4] It is difficult not to agree that such a situation would be unworkably constricting for testators.

So, once again, what to do? In the absence of legislative action calling for more equality in estate planning, I would advocate for the adoption of a legal test in our courts of construction. As a starting point, consider the test developed by Hull and Popovic-Montag in response to their disagreement with the ONCA in Spence. They propose that:

“a court should not set aside a will for public policy reasons unless there is overwhelming demonstrative evidence that the rationale for a post-mortem disposition of property is substantially motivated by racial discrimination with the mala fides intention to deprive a person who is the natural object of the testator’s bounty.”[5]

This is a very good start. Granted, given that it only captures cases of racial discrimination, a discussion about expanding its scope may be warranted, but I will leave that for another day. Furthermore, perhaps even a judicial “weighing” of the importance of giving effect to testamentary freedom in the face of discriminatory conditions, on a case-by-case basis, may also be warranted. However, once again, a more nuanced discussion is required, especially given that case-by-case analyses have the effect of undermining precedent.

I recognize that the suggestions I offer may seem to introduce uncertainty in estate planning. But, as a concluding remark, I believe that this is precisely where solicitors are able to come into the picture to quell this potential uncertainty. I believe that a solicitor’s role in the midst of this uncertain area of law is to, at every available opportunity, remind clients that racist or otherwise discriminatory dispositions should not find their way into wills. In practice, such discussions should arise early on, in initial meetings with clients, during which solicitors are “probing” clients for the underlying reasons educating their proposed testamentary instructions. If it is the case that a potential beneficiary is, perhaps unexpectedly or arbitrarily, being treating abnormally, a solicitor should merely consider asking “Why?”. If, following this, there is confirmation that such beneficiaries are being treated differently due to discriminatory considerations, the client is to be reminded that testamentary dispositions motivated by unseemly intolerance simply may not be accepted as valid by future judges.

As a final note, this blogger would like to invite readers to recall that so much of what educates judicial views surrounding “public policy” relates to the widely held societal views and practices of the day. Accordingly, maybe—just maybe—the more solicitors continue to inform their clients about the impropriety of discriminatory wills, the more open future courts will be to acknowledge such wills as being against public policy.

[1] 2016 ONCA 196 [Spence].

[2] Anne Kennedy, “Spence v. BMO–An Update”, Pallett Valo LLP (May 2016).

[3] 2016 ONCA 303 [Neuberger].

[4] Robin Spurr, “Spence v. BMO Trust Company: the case of the racist father”, Estate Litigation Blog (February 27, 2015).

[5] Ian Hull & Suzana Popovic-Montag, “BMO v. Spence: Racial discrimination and ‘private wills’”, The Advocates’ Journal (Fall 2016) at 27.

About Emily Hubling
Emily Hubling is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Emily has experience in advising estate trustees in administering a range of complex estate matters, including intestacies, cross-border matters, and contested estates. Working closely with clients’ advisors, Emily prepares Wills, Powers of Attorney, and Trusts to assist clients in fulfilling their unique estate-planning objectives.


  1. Rozie

    August 3, 2018 - 3:30 pm

    Excellent article.

    • Giancarlo Mignardi

      August 3, 2018 - 5:13 pm

      Thanks, Rozie!

  2. Tina

    August 3, 2018 - 9:47 pm

    Very interesting!

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