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In a precedent-setting ruling, Justice Gilmore of the Ontario Superior Court of Justice invalidated a Will on the grounds that its racist intent violated public policy.

The testator, Emanuel Spence, a black Minister, had two adult children, Verolin and Donna. Until 2002, Verolin had a good relationship with her father and he supported her. However, in 2002, their relationship soured dramatically when Verolin told the deceased that she was pregnant and that he father of the child was Caucasian. From that point on, the deceased cut off all communication with Verolin and refused to have anything to do with his grandson.

In 2010, the deceased made a Will that specifically disinherited Verolin, using the following language:

I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as a father.

The Will distributed the deceased’s estate to Donna and Donna’s two children. Verolin brought an application challenging the Will as void on the grounds that it offends public policy.

What makes this case interesting is that there is nothing in the written text of the Will that is offensive or contravenes public policy. The testator’s stated reason for disinhering Verolin is that they had lost touch. However, Verolin provided uncontroverted evidence that the deceased’s true reason for disinheriting her was the race of the father of her child. Therefore, the question before the Court was whether the Will was invalid on the basis that the intention of the deceased violated public policy even if the written word did not.

The Court considered McCorkill v McCorkill Estate, 2014 NBQB 148 (CanLII), in which the court determined that the transfer of the residue of the McCorkill estate to “National Alliance” was against public policy, as National Alliance had “a long history of inspiring and carrying out hate motivated violence and terror”.

Justice Gilmore ultimately ruled that the intent of the deceased in disinheriting Verolin violated public policy, and therefore the Will was void:

… it is clear and uncontradicted, in my view, that the reason for disinheriting Verolin, as articulated by the deceased, was one based on a clearly stated racist principle. Does it offend public policy that the deceased’s other daughter, Donna, should receive the entire estate simply because her children were fathered by a black man? That, in my view, offends not only human sensibilities but also public policy.

As a result, the deceased’s estate went on intestacy and was therefore divided between Donna and Verolin.

The influence of this case remains to be seen. An outstanding question arising from this case is whether it will be followed in cases where there is conflicting evidence regarding the deceased’s intentions.

You can read the complete text of Spence v Spence Estate here: https://www.canlii.org/en/on/onsc/doc/2015/2015onsc615/2015onsc615.html?resultIndex=1

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