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Racist Will Case Appealed

In an earlier blog article, I wrote about an interesting case in which the court overturned a “racist” will.

In brief, in Spence v. BMO trust Company, 2015 ONSC 615, the testator left a will in which he disinherited one of his children. The child who was cut out of the will, an adult daughter, applied to the court to set aside the will on the basis that her father’s reasons for cutting her out were rooted in racism. In particular, the daughter had a child with a white man and the daughter’s father, who was black, apparently did not approve of the daughter’s mixed racial relationship and cut her out of his will for this reason.

Justice Gilmore accepted the evidence as to the father’s reasoning and set aside the will, deeming that it was contrary to public policy to permit the will to stand. What was notable is that the will itself did not give any indication that the will was rooted in racist beliefs. The case was therefore distinguishable from other cases where the courts have for instance disallowed wills that explicitly promoted racism (i.e., in one case a gift to a racist organization was invalidated).

The estate trustee appealed the lower court’s decision. The Court of Appeal overturned the trial decision, ruling that the testator had the right to leave his money to whomever he wanted. The Court of Appeal refused to “lift the veil” so to speak to scrutinize the father’s beliefs. Since the will did not include any conditions or terms that offended public policy, it was valid. The Appeal decision is available here.

The appeal decision certainly restores the principle of “testamentary freedom.” It may also promote less litigation on the basis of challenging the intentions of the testator.