Public Policy Restrictions on a Testator’s Private Dispositions: Spence v. BMO Trust

Testamentary freedom

Should a will be set aside where a beneficiary was excluded for reasons which were racially motivated? Should third party extrinsic evidence of the alleged motivations be admissible in support of an application to set aside the will?

These were the issues examined by the Ontario Court of Appeal in Spence v. BMO Trust Company a decision which came down soundly on the side of testamentary freedom in a situation where a person makes a private, unequivocal bequest in his or her will, even if the motivations behind such a bequest were racially motivated.


Eric Spence died in 2013 and was survived by two daughters from his first marriage, Verolin Spence and Donna Spence. When Mr. Spence separated from his first wife, Donna continued to live with her mother and Verolin lived with Mr. Spence. The evidence was that while Donna had virtually no contact with her father after the separation, Verolin went on to have a positive and close relationship with him. This relationship changed in 2002, when Verolin became pregnant and Mr. Spence discovered that the father of her child was a white man. After this time, Mr. Spence cut off all contact with Verolin and never met her child.

In 2010, Mr. Spence made a will, which provides that Donna and her two sons inherit his entire estate and makes no provision for Verolin or her son. In clause 5(h) of the will, Mr. Spence states that his reason for excluding Verolin from the will was due to the fact that she had no communication with him for several years.

Verolin brought an application to set aside the will on the grounds that she was disinherited because of her father’s racism and that this was against public policy. A friend of the family and occasional caregiver to Mr. Spence swore an affidavit in support of the application, stating that Mr. Spence told her that the sole reason Verolin was excluded from the will was because her child’s father was white.

The Trial Court’s Decision

At the hearing of the application, Justice Gilmore accepted the family friend’s evidence and set aside the will on the grounds that Mr. Spence’s reasons for disinheriting Verolin were against public policy.

The BMO Trust Company, as the Estate Trustee appealed the decision. The Court of Appeal allowed the appeal and overturned Justice Gilmore’s decision.

The Appeal

In writing for the Court of Appeal, Justice Cronk affirmed the principle of testamentary freedom and the ability of a testator to distribute his property as he so chooses. The Court recognized the need for limits on this freedom, but distinguished between gifts that are public in nature (i.e. a public scholarship trust) and those that are private, such as an unequivocal bequest of this nature.

Crucially, the appeal judges found that the will did not impose any conditions or restrictions on a trustee that would offend public policy. The will simply made an unconditional and unequivocal bequest to Donna and made no provision for Verolin for reasons clearly stated in the will. The Court found that this case was “markedly different” from other cases in which the court interfered with a person’s testamentary freedom on public policy grounds.

With respect to the evidence, the Court found there was no basis for the lower court to embark on an evaluation of Mr. Spence’s underlying motivations where his intentions were clearly and explicitly stated in the will.

While this result may leave a sour taste for many, the Court clearly affirmed the entrenched principle that testamentary freedom is not something that the courts will interfere with lightly.

Thank you for reading.

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