Spence v. BMO Trust Company — Testamentary Freedom and Disinheritance in Ontario

Spence v. BMO Trust Company is a controversial Ontario Court of Appeal decision that strongly affirmed testamentary freedom in Ontario, even where the motive for a disinheritance was potentially discriminatory. Understanding the case is important for anyone thinking about disinheritance in Ontario.

Case citation #

Spence v. BMO Trust Company, 2016 ONCA 196 (Ontario Court of Appeal)

Lower court: Spence v. BMO Trust Company, 2015 ONSC 615 (Ontario Superior Court of Justice)

Available on CanLII.^[1]

The facts #

The deceased, Rector Emanuel Spence, made a will leaving his estate substantially to one daughter (Donna) while explicitly disinheriting his other daughter (Verolin).

Verolin had been raised by Mr. Spence after a contentious separation from her mother. Their relationship had been close for many years.

Then Verolin formed a relationship with a partner of a different race and had a child with him. Mr. Spence reacted strongly negatively. He cut off contact with Verolin. He subsequently made a will disinheriting her entirely.

After Mr. Spence's death, Verolin challenged the will. She introduced evidence suggesting that her father's disinheritance was motivated by racism — specifically, by his objection to her interracial relationship.

The lower court — Spence v. BMO Trust Company, 2015 ONSC 615 #

Justice Gilmore at the Ontario Superior Court of Justice found:

• The evidence supported Verolin's claim that the disinheritance was motivated by racial discrimination
• The motive was "based on a clearly stated racist principle" violating public policy
• Such a disposition was contrary to public policy and "human sensibilities"
• The entire will was set aside on public policy grounds

The decision was significant because it applied public policy doctrine — typically reserved for contracts and trusts — to a private testamentary disposition.^[2]

The Court of Appeal reversal — 2016 ONCA 196 #

The Ontario Court of Appeal (Justice Cronk writing) reversed the lower court. Key findings:

Public policy doesn't apply to private testamentary dispositions #

The Court held that the doctrine of public policy generally does not apply to private testamentary dispositions, even where the motive may be discriminatory. The rationale:

• Testamentary freedom is a foundational principle of Canadian succession law
• Testators have broad latitude to dispose of their property as they see fit
• Public policy doctrine is designed for situations involving public elements (charitable trusts, contracts), not private bequests
• Private wills don't carry public policy implications in the same way

Evidentiary rules limit extrinsic evidence #

The Court further held that evidentiary rules applicable to courts of construction apply to public policy challenges to wills. This significantly limits the extrinsic evidence that can be introduced — much of Verolin's evidence about her father's motivations was procedurally restricted.

Testamentary intent prevails #

Even assuming the disposition was discriminatory in motive, it would still be valid as reflecting the testator's intentional, private disposition of his property — the core aspect of testamentary freedom.^[1]

Why the case is controversial #

Strong testamentary freedom: The decision firmly reinforces Canadian testator autonomy. Mr. Spence could disinherit Verolin for any reason — including a discriminatory one — and the law would not interfere.

Tension with public values: Many commentators argue that allowing racially-motivated dispositions runs against Canadian commitments to equality and human rights. The decision puts testator freedom above these values in the private testamentary context.^[3][4]

Practical implications: Disinherited adult children in Ontario face limited legal recourse. Dependant relief under the Succession Law Reform Act Part V remains available, but only for actual dependants.

What this means in Ontario #

Disinheritance is generally permitted #

A testator in Ontario can disinherit family members for almost any reason. The will reflecting that decision is generally valid.

Limited exceptions #

Dependant relief (SLRA Part V): Actual dependants of the deceased (typically spouse and dependent children) can apply for adequate provision regardless of will provisions. Independent adult children typically cannot.

Lack of capacity: If the disinheritance reflects lack of capacity (Banks v. Goodfellow test), the will may be invalidated.

Undue influence: If the disinheritance was procured by undue influence, the will may be invalidated.

Suspicious circumstances: Where present, burden shifts to the proponent (Vout v. Hay).

Charitable trust public policy: Public policy doctrine still applies to charitable trusts (unlike private wills) — see, e.g., McCorkill v. Streed (NB Court of Appeal) on white supremacist bequest.

Comparison to BC's framework #

The contrast with BC is significant:

BC (WESA Part 4 / former Wills Variation Act):

• Even independent adult children can challenge for inadequate provision
• Tataryn v. Tataryn principle — "adequate, just and equitable" includes both legal and moral obligations
• Disinheriting an adult child requires defensible reasons
• Verolin would have had standing in BC

Ontario (SLRA Part V + Spence):

• Only actual dependants can challenge for adequate provision
• Independent adult children cannot
• Disinheritance generally permitted with broad freedom
• Public policy doesn't restrict private testamentary disposition

A disinherited adult child has dramatically different options depending on which province governs.

Practical implications for testators #

If you want to disinherit family in Ontario:

• The disinheritance is generally enforceable
• Consider including the reason (or not) — Spence suggests motive doesn't matter for validity, but reasons in the will may be discoverable
• Watch for dependant relief — actual dependants may still have claim
• Consider letter of wishes explaining (or not explaining) the decision

If you want the testamentary disposition to be challenge-proof:

• Independent legal advice
• Capacity assessment if any concern
• Document reasoning
• Avoid suspicious circumstances
• Use in terrorem clause to discourage challenges (limited effect against dependant relief)

Practical implications for disinherited family #

In Ontario after Spence:

• Public policy challenge is difficult
• Dependant relief possible only if actual dependant
• Other grounds (capacity, undue influence) may apply if circumstances support
• Specific consultation with Ontario estate lawyer

In BC:

• WESA Part 4 wills variation may be available even for independent adult children
• Tataryn principles consider both legal and moral obligations
• Specific consultation with BC estate lawyer

What we focus on at It's Simple Will #

The Will Creator accommodates a range of distribution choices including specific disinheritance provisions. For Ontario testators considering disinheritance, awareness of Spence is important. For testators with concerns about challenge risk, lawyer-assisted drafting with documented reasoning is appropriate.

Related guides #

• Dependant relief Canada
• BC Wills Variation Lam decision
• Tataryn v. Tataryn
• No-contest clauses Canada
• Wills after second marriage Canada