The Ontario Court of Appeal recently had the opportunity to address the clash of values presented by testamentary freedom versus public policy.
In the case of Spence v BMO Trust Co, the court was dealing with a last will of a fellow who disapproved of his daughter’s choice of a male partner.
The father was black, the daughter is black, but the daughter’s male partner is white. One can almost visualize an episode from the Jefferson’s situation comedy from the 1980s when thinking about this one.
The last will and testament did not use racist language. However, at trial the daughter had lead evidence, which the trial judge found admissible, and believable, that her disinheritance stemmed from racist beliefs of her Dad.
The court came out with a clear pronouncement, that where the last will and testament is not ambiguous, extrinsic evidence about the document and what was meant and why certain things were in it, or not in it, will not be accepted as evidence by Ontario courts.
However, the court went further and stated that even if there was a racist explanatory clause in the last will regarding the disinheritance, it still would not oust the old doctrine of testamentary freedom.
The disappointed beneficiary has sought leave to appeal to the Supreme Court of Canada.