Testamentary Freedom Reaffirmed

Early this month Ontario’s Court of Appeal released its decision in Spence v. BMO Trust Company, an important statement on the supervisory jurisdiction of Ontario courts regarding gifts in a Will that offend public policy.

The court affirmed that at common law, “… a testator’s right to dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds”, is protected.


The deceased had two daughters. He moved to Canada after divorcing their mother. His daughter Verolin followed her father to Canada. The other daughter remained with her mother in England.

The deceased, a black man, restricted his communications with Verolin after he learned she was pregnant with the child of a white man.

The deceased made a will almost 8 years after the child was born. It made no provision for Verolin or her child. It expressly excluded Verolin on the ground she had had no communication with the deceased for several years, and showed no interest in him.

Verolin applied for a declaration that the Will was void as contrary to public policy . The application was based on affidavit evidence that the deceased’s exclusion of Verolin was racially motivated. There was no cross examination.

The application judge set aside the Will on the ground that it violated public policy against racial discrimination, according to the uncontradicted evidence.

The appeal judgment

Allowing the appeal the ONCA affirmed a testator’s freedom to distribute property as he or she chooses, in accordance with “deeply entrenched” common law principles. ” No one, including the spouse or children of a testator is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on the testator.”

In Ontario there is no statutory duty on a competent testator to provide in a will for an adult, independent child. Testators are free to exclude from their estate children who are not dependents.

A testator’s right is not absolute. It is constrained by public policy in situations where the Will requires the beneficiary or trustees to act in a manner contrary to law or public policy, or benefits “unworthy heirs” thereby facilitating the pursuit of illegal and discriminatory ends.

But there is no open ended jurisdiction to examine the validity of a testamentary bequest.

Even where a private disposition of property is made expressly for discriminatory reasons, there is no supervisory jurisdiction, such is the nature of testamentary freedom. The desire to “…guard against a testator’s testamentary dispositions cannot be allowed to overtake testamentary freedom.”

The applications judge erred , “…by going behind the testator’s expression of his clear intentions regarding the disposition of his property.”



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