All About Estates

Court of Appeal Upholds Testamentary Freedom

Today’s blog is written by guest blogger Adam Parachin, Associate Professor at the Faculty of Law at the University of Western Ontario.

The Ontario Court of Appeal has released its decision in Spence Estate (Re) 2016 ONCA 196. In reversing the lower court holding of Justice Gilmore, the Court of Appeal confirmed – wait for it – that testators are not obligated to benefit the persons they are not obligated to benefit. The most astounding feature of the judgment is that it was necessary in the first place.

At issue in the case was the testator’s decision to leave nothing in his will to one of his adult daughters. The will specified that this was due to an extended lack of communication with the daughter. However, Justice Gilmore admitted extrinsic evidence revealing a discriminatory motive. A family friend swore an affidavit indicating that she heard the testator say prior to his death that the exclusion was in reality attributable to the testator’s objection to the excluded daughter having conceived a child with a Caucasian man.

Justice Gilmore struck the entire will, reasoning that the father’s discriminatory reason for not benefiting the excluded daughter violated public policy.

The finding was literally unprecedented in this jurisdiction. Ontario law does not obligate parents to leave inheritances to their children who are not dependants. A parent’s reason, discriminatory or otherwise, for excluding such a child from a will is therefore legally and logically irrelevant. How could there be a wrongful basis on which to withhold an inheritance from a surviving family member not entitled to one?

None of this was lost on the Court of Appeal, which reversed the lower court’s holding and upheld the will. Appearing on behalf of the successful appellant were fellow bloggers, Justin de Vries and Angela Casey. The judgment contains a number of findings of considerable importance to the law of estates in Ontario.  These include the following:

  • Testators are free to exclude from their wills children who are not dependants for literally any reason, including discriminatory reasons explicitly recited in wills.
  • Neither the Charter of Rights and Freedoms nor Ontario’s Human Rights Code apply to testamentary dispositions of a private nature.
  • Where a testator’s intentions are unambiguous and unequivocal, extrinsic evidence of the testator’s intentions and motives is not admissible.

There is much to commend the Court of Appeal’s reasoning. Wills are fundamentally concerned with benefaction. By its nature, benefaction is not something that can be wrongfully withheld. The danger of the lower court’s holding in Spence is that it misused the doctrine of public policy as a tool for judicially imposed forced heirship.

Moving forward, the next controversial issue dealing with discrimination in wills is going to be discriminatory conditions. The Court of Appeal acknowledged that such conditions may be void where they require a beneficiary or trustee to act in a manner that is contrary to public policy. But what does this mean? The determination that neither the Charter nor the Human Rights Code applies to wills suggests that neither informs when public policy concerns are attracted in the context of wills. However, this topic was left for a future judgment.


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