Reasonable Doubt: No Dependents or a Spouse? You Can Do What You Want With Your Will

September 8, 2016
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From NOW Magazine's Reasonable Doubt column: At what point, if ever, is one free to dispose of property as one sees fit, without being obliged to support children or spouses who we feel are undeserving? The Ontario Court of Appeal recently addressed this issue in the decision of Spence v. B.M.O. Trust Company, 2016 ONCA 196. The facts were controversial. 

A spouseless father died, leaving all of his property divided between one of his two daughters and her sons. The will expressly excluded his second daughter on the basis that she had not had a relationship with him for many years. The will appeared without controversy – as a general principle, an individual has no obligation under Ontario law to leave any portion of his or her estate to an adult, financially independent child. However, controversy arose when the excluded daughter moved to set aside the will and brought a support claim on behalf of her son, a minor and grandson of the deceased. BMO Trust, the Estate Trustee (the executor) filed a defence.

According to the excluded daughter, the reason she was estranged from her father, who was black, was because she had a child with a white partner. Prior to that, she had had a close relationship with her father and had been raised by him in Canada, unlike her sister who had been raised by their mother in England. The sister in England had very little to do with their father during his life but, unlike the excluded daughter, had her children with a black man. At the Superior Court level, the court struck down the daughter’s claim that her son was entitled support from his deceased grandfather on the basis that he wasn’t financially dependent on his grandfather at the time of his death. However, the court struck down the will on the basis that it contravened public policy by discriminating against the daughter for having had a bi-racial child. BMO appealed that decision.

The Court of Appeal struck down the lower court ruling and upheld the will. In doing so, the court indicated that it was upholding the principle that an individual is entitled, where they have no dependents, to dispose of their property as they see fit. While the deceased may well have been racist, it wasn’t apparent on the face of the will. The court, as a general principle, is not to look behind the will in an attempt to determine a deceased person’s motives.

Read more: Reasonable Doubt: No Dependents or a Spouse? You Can Do What You Want With Your Will