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Estates & Wills & Trusts

Overturning of 'racist' will raises questions

While the law says the provisions of a will must be upheld unless they violate public policy, what qualifies as acceptable continues to be decided on a case-by-case basis, Toronto trusts and estates lawyer Suzana Popovic-Montag says in the Toronto Sun.

It may be assumed that an individual’s dying wish should not be overturned by anyone, least of all the judiciary, but that’s exactly what's happened in a Newmarket court recently, says the article.

“Ontario Superior Court Justice C.A. Gilmore voided the ‘racist’ will of Eric Spence because he found the Jamaican-born father refused to leave any of his estate to a daughter, Verolin Spence, who had a baby with a white man,” says the Sun report.

The judge felt it offended public policy that the deceased's other daughter “should receive the entire estate simply because her children were fathered by a black man,” says the Sun.

The judge proceeded to set aside the man’s will, the intestacy from which would result in his $400,000 estate being equally split between his two daughters.

But in his will, the man blamed the lack of communication with his daughter for his decision to leave her nothing, reports the Sun, noting the judge accepted the evidence of a friend who said she was written out of his will because of her pregnancy.

When it comes to determining what violates public policy, Popovic-Montag, managing partner of Hull & Hull LLP, says it’s not always a clear decision.

"It's a moving target," she says in the article. "The judiciary became the gatekeeper of what's moral or against public policy."

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