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OCA decision favours principle of testamentary freedom

The Court of Appeal’s ruling in Spence Estate (Re), 2016 ONCA 196 reinstating a testator's will is a good decision in favour of testamentary freedom, Toronto wills and estates lawyer Daniel Bernstein tells AdvocateDaily.com.

Bernstein, a lawyer with Weltman Bernstein, says the lower court’s decision was “troubling in the sense that it created uncertainty for lawyers drafting wills and possibly opened the ‘floodgates’ for estate litigation lawyers.”

In its 2015 ruling, the Ontario Superior Court set aside the will of Eric Spence, citing evidence that proved daughter Verolin Spence’s assertions that she was disinherited because she gave birth to a child with a white father, and the will should therefore be void for public policy reasons.

The Court of Appeal focused on the principle of testamentary freedom, and concluded that the application judge "erred by embarking on a public policy-based review of the impugned terms of Eric’s Will and that she further erred by admitting the Extrinsic Evidence tendered in this case."

As Justice Eleanore Cronk writes for the three-judge panel: “The law does not require a testator to explain, let alone to defend, her reasons for her testamentary dispositions. Indeed, in my view, the privacy of those reasons is inherent in the principle of testamentary freedom.”

Bernstein says the Court of Appeal decision starts off with the premise that no one — including the spouse or children of a testator — is entitled to receive anything under a will subject to legislative constraints.

“Subject to legislation that imposes obligations on the testator, this affirms the underlying, common law principle that testamentary freedom should not be interfered with except insofar as the law requires, quoting the 1994 Supreme Court case of Tataryn.”

Bernstein says the court goes on to explain there is nothing in Ontario legislation that requires a testator to leave any asset to adult independent children whether on moral or any other grounds — although testamentary freedom may be restricted in some cases by public policy in addition to legislation.

“It was this ‘public policy’ ground that the disentitled daughter argued should entitle her to a share of her father’s estate,” he explains. “However, in this case the will imposed no conditions that offended public policy. The terms of the will were unequivocal and unambiguous and no provision was made for one of the daughters because, according to the testator, his daughter Verolin Spence stopped communicating with him and showed no interest in him as a father.

“He may have been bitter but the Court of Appeal didn’t view the language used in the will as discriminatory,” Bernstein adds.

He says the Court of Appeal reviewed prior cases where courts have stepped in to disallow bequests in wills for being against public policy but distinguished this case by stating that, unlike prior cases, there was nothing in the will that required any beneficiary to act in a manner contrary to law or public policy in order to inherit.

As well, there was nothing in the will that obliged the executors to act in a manner contrary to law or public policy in order to implement the testator’s wishes, Bernstein says.  

“The court rejected the argument that it had some type of authority to go behind a will to examine a testator’s alleged motive in making a bequest, arguing that one must be restricted to look at the actual wording of this will to determine discriminatory intention and the will was clear and unambiguous,” Bernstein says.

In fact, the court went on to rule that even if the testator’s will openly disentitled his daughter on discriminatory grounds (for marrying a white man), because it was a bequest of a “private nature,” the bequest would still be valid as not offending public policy as it didn’t force either a beneficiary or an executor to act contrary to law or public policy.

“The court said that neither the Charter nor the Human Rights Code has jurisdiction over testamentary dispositions of a private nature,” Bernstein says.

“Unless a will is equivocal or vague, one can’t look behind a testator’s intention except in cases where there is legislative authority, public policy concerns (where executors or beneficiaries have to act against the law or public policy) or legally offensive conditional terms in the will itself,” he says.

“The court was careful to confine its reasons to private testamentary dispositions,” Bernstein adds.

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