Wills that "shock the conscience": an Australian perspective on Spence v. BMO Trust Company.

• Jurisdiction: Australia
• Date: 01 January 2016
• Author: Lentini, Esterina Elizabeth
• Published date: 01 January 2016
• Author: Lentini, Esterina Elizabeth

I INTRODUCTION

Is there any judicial recourse for the child of a deceased person who finds themselves excluded from their parent's will for what is believed to be a discriminatory motivation?

The 2015 decision of Spence v BMO Trust Company (1) determined by Gilmore J in the Ontario Superior Court of Justice, and the related 2016 appeal decision of the same name (2) decided by Justices of Appeal Cronk, Lauwers and van Rensburg in the Court of Appeal for Ontario, address this question in the context of a will made by a testator that excluded one of his two daughters from provision on the basis that the excluded daughter had given birth to a child fathered by a white man. At first instance, Gilmore J held that the testator's will was void for reasons of public policy. On appeal, the decision was overturned and the will was held to be valid.

The decisions traverse various issues, including the paramountcy of testamentary freedom in the history of succession law, the extent to which public policy considerations may curtail that freedom of testation, principles in the construction of wills, and the admissibility of extrinsic evidence in succession matters. This article considers the two recent Ontario decisions and the approach of Australian courts.

II SPENCE VBMO TRUST COMPANY

A The Decision at First Instance

The decision of Spence v BMO Trust Company was heard at first instance on 13 January 2015 and determined by Gilmore J on 27 January 2015. The applicants were Verolin Spence ("Verolin") and her son Alexander Spence ("Alexander"), aged 11 at the time of making the application and in respect of whom Verolin acted as a litigation guardian. Verolin sought a declaration from the Ontario Superior Court of Justice that the last will dated 12 May 2010 of her father, Rector Emanuel Spence ("the deceased", also known as "Eric"), be set aside on the grounds that it was void for public policy reasons. (3)

The deceased's will appointed BMO Trust Company (the defendant in the proceedings) as estate trustee, excluded Verolin from provision, and gifted the estate to the deceased's only other child, Verolin's sister Donna Spence ("Donna"), and Donna's two minor children. (4) Clause 5(h) of the deceased's will set out express reasons for the exclusion of Verolin from provision:

I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father. (5) The essence of Verolin's application was that the deceased's will should be held to be void for public policy reasons on the basis that the exclusion of Verolin from provision was discriminatory. Verolin led evidence that, during the deceased's lifetime, her father had vehemently disapproved of the fact that she had conceived a child (Alexander) with a Caucasian man. Verolin had shared an 'excellent relationship'6 7 8 with her father up until the point at which she told him of the pregnancy in September 2002. She avowed that the deceased was ashamed of her and restricted further communication with her until his death, making clear that 'he would not allow a white man's child in his house'. (7)

To support her contention that the deceased's testamentary motivations were discriminatory, Verolin also relied on the evidence of Imogene Parchment ("Imogene"), a long-term friend of the deceased. Imogene deposed in an affidavit filed in the proceedings that the deceased had disinherited Verolin in his will specifically because the father of her son was white, and had made provision for Donna and her sons as the father of Donna's sons was black. (8)

The effect of a declaration that the deceased's will was void on the basis of public policy was that the deceased would die intestate, and both Donna and Verolin would share equally in his estate as his children according to the rules of intestate succession in that jurisdiction.

Interestingly, neither Donna nor any representative for Donna's children filed an appearance in the matter, and Donna had had little or no contact with the deceased for many years. (9)

In a relatively short analysis, Gilmore J considered the arguments for and against a determination that the deceased's will be set aside. In favour of setting the will aside, Her Honour cited what she called the 'leading authority' (10) on public policy, Canada Trustco v Ontario (Human Rights Commission), (11) in which the Ontario Court of Appeal struck out the terms of a trust that expressly limited the recipients of scholarships from the trust to persons who were white, Christian, British, and 75% of which had to be male, on the basis that the terms were discriminatory in nature and 'contravened contemporary public policy'. (12) Gilmore J also considered BMO Trust Company's counter-argument that the deceased's will in fact made 'no mention' (13) whatsoever of any discriminatory reason for Verolin's disinheritance, and that there was no authority in support of admitting extrinsic evidence as to a deceased person's testamentary intentions in situations where there was no ambiguity on the face of the will itself. (14)

Although conceding that 'the relevant paragraph in the deceased's will does not, on its face, offend public policy', (15) Gilmore J ultimately relied on the 'uncontradicted evidence' (16) of Imogene that the deceased's motivations in making the will...