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'Irreconcilable' issues remain unclear after Spence leave decision

The Supreme Court of Canada’s recent decision not to grant leave to appeal in the case of a woman left out of her father’s will for alleged racist reasons has resulted in a number of unanswered questions around the issue of how public policy and evidence affect testamentary dispositions, Toronto lawyer and arbitrator Earl Cherniak tells AdvocateDaily.com.

In its 2015 ruling in Spence v. BMO Trust Company, 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.

On appeal, however, the Ontario 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." Ontario's top court ultimately declined to uphold the earlier ruling to invalidate the will.

Although Spence sought to challenge the decision at the SCC, earlier this month, the court dismissed the application for leave in Verolin Spence, et al. v. BMO Trust Company.

As Cherniak, partner with Lerners LLP and counsel for Verolin Spence along with colleagues Jasmine Akbarali and Michael Deverett, says, “I am surprised and disappointed that the court did not take the opportunity to clarify the important public policy and evidentiary issues raised in both the Spence estate and the New Brunswick McCorkill estate decision," which declared void, as illegal and contrary to public policy, a bequest to an American neo-Nazi organization.

“We are now left with decisions on these issues in two Canadian appellate courts that in my view are irreconcilable,” he adds.

To Read More Earl Cherniak Posts Click Here
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