Laredo: Court of Appeal’s decision in Spence is just

A Court of Appeal decision to reinstate a man’s allegedly racist will restores certainty to the field of estate planning, Toronto wills and estates lawyer Lisa Laredo tells

Jamaican-born Eric Spence’s will was initially ruled invalid by an Ontario Superior Court judge after she allowed the introduction of evidence that suggested Spence had disinherited his daughter because she had a child with a white man, but the Court of Appeal for Ontario overturned that decision, ruling the evidence should never have been admitted.

“It’s a really important case, and I think the Court of Appeal ruling was just,” says Laredo, principal at Toronto firm Laredo Law. “It’s not fair to go into someone’s mind to look at their motives for writing a will, especially someone who is not alive.”

Had the original judgment stood, Laredo says it would have encouraged more embittered or slighted family members to challenge wills.

“I think money can make people a bit crazy. So many people go and challenge wills, and I’m always amazed by how entitled children can feel when it comes to an inheritance — no matter what their relationship was with their parent. It’s a real problem,” Laredo says.

The case of Spence v. BMO Trust Company, 2016 ONCA 196 (CanLII) has its roots in England, where Spence’s two daughters from his first marriage were born. When he split from their mother, one child, Verolin Spence, lived with him, while her sister stayed with their mother. Eric Spence emigrated to Canada in 1979, and Verolin Spence followed five years later.

According to evidence given by Verolin Spence, her relationship with her father was very close until 2002, when she revealed that she was pregnant by a white man. She said her father, a black man, restricted his contact with her and never met her son, now 13 years old.

Eric Spence’s will was written in 2010, leaving the bulk of his estate to the daughter who remained in England and her children. It also included a clause that expressly disinherited Verolin Spence:

“I specifically bequeath nothing to my daughter, [Verolin] as she has had no communication with me for several years and has shown no interest in me as her father,” the will reads.

Laredo says the clarity of the clause should have left no room for any further investigation of Eric Spence’s motives.

“Those reasons are completely justifiable, and when the wording is that clear, I think those wishes should be honoured, and there shouldn’t be any way to look behind them,” she says.

Verolin Spence and her son applied to have the will ruled invalid, claiming it was contrary to public policy, and enlisted the support of her father’s caregiver in later life, who alleged in her evidence that Eric Spence’s decision to disinherit his daughter was racially motivated.

Last January, the Superior Court sided with Verolin Spence, concluding on the strength of the extrinsic evidence that the disinheritance was “based on a clearly stated racist principle.” As a result, she set aside the will and ordered the estate split equally between the two daughters.

BMO, the estate administrator, appealed the decision and, on March 8, a three-judge panel of the Court of Appeal concluded judicial interference with Eric Spence’s testamentary freedom was unwarranted, and reinstated the will.

The Superior Court judge should never have admitted the extrinsic evidence, wrote Appeal Court Justice Eleanor Cronk, because the will already disclosed the motive for the disinheritance.

“The purpose of the Extrinsic Evidence was not to establish Eric’s motive for the residual bequest in his Will but, rather, to contradict the lawful motive for the bequest disclosed by the plain language of the Will and to substitute, in its stead, a different and allegedly unlawful motive,” Cronk wrote. “I see no basis at law for the admission of wholly contradictory, extrinsic evidence of motive for this purpose. In my view, the courts should be loath to sanction such an indirect attack, which the deceased cannot challenge, on a testator’s expressed motive and testamentary choices.”

Even if the evidence were admitted, Cronk ruled she would still not have set it aside on public policy grounds.

“To apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law,” Cronk’s decision reads. “Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.”