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Counsel to seek SCC appeal in case of discriminatory will

A woman who was omitted from her father’s will for alleged racist reasons will seek leave to appeal her case to the Supreme Court of Canada, after the Court of Appeal declined to uphold an earlier ruling to invalidate the will, Toronto lawyer and arbitrator Earl Cherniak tells AdvocateDaily.com.

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

In Spence Estate (Re), 2016 ONCA 196, however, 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: “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.”

“… the scope for judicial interference with a testator’s private testamentary dispositions is limited. So, too, is the reach of the public policy doctrine in estates cases. And for good reason. The court’s power to interfere with a testator’s testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator’s testamentary choices as distasteful, offensive, vengeful or smallminded,” says the decision.

Cherniak, partner with Lerners LLP and counsel for Verolin Spence along with colleagues Jasmine Akbarali and Michael Deverett, calls the decision a “disappointing result.”

“The application judge accepted cogent, independent and uncontradicted evidence that the testator cut his daughter and her son out of his will for purely racist reasons, that the son had a white father. The Court of Appeal held that testamentary freedom trumped a racist motivation, and rejected the analysis of the application judge. That is an unhappy and unfortunate result in the multicultural, multiracial world that is today’s Canada,” Cherniak tells AdvocateDaily.com.

“Ms. Spence has instructed her counsel to seek leave to appeal to the Supreme Court of Canada. The issues raised by the case are important, and as the Court of Appeal said, are matters of first instance in Ontario, and indeed in Canada.”

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