Be Careful, your views could affect your will

Two weeks ago, a story that received limited press should have sent shockwaves throughout the legal establishment and to anyone who has prepared a last will and testament.   Ontario, Judge C.A Gilmore rejected the will of the late Rector Emanuel Spence who bequeathed his entire estate to only one of his two daughters as the judge believed his motivations were racist. As such, the Judge set a controversial precedent where the thoughts and views of the deceased, and not the recipient of the inheritance, was determined to be detrimental to public policy and warranted the complete nullification of his will.

Mr. Spence died alone in 2013 and left a valid and legal will and testament for his entire $400,000 inheritance. Mr. Spence, originally from Jamaica moved to London, England where he had two daughters with the same woman. The couple separated and each parent took custody of one child. Mr. Spence decided to immigrate to Canada in 1979 and his child Verolin, who was the one trying to overturn her father`s will, moved to Canada with him after completing high school. All was well between Mr Spence and his daughter until 2002 when Verolin became pregnant by a man who was not black. Mr. Spence was not happy, their relationship went sour and Mr. Spence decided to remove Verolin from his will and bequeathed his entire inheritance to his other daughter in England with whom he barely knew.

Judge C.A Gilmore, made legal history by issuing a verdict stating that the intentions of the deceased were racist and offended public policy and as such the will should be voided and the inheritance should be divided equally between Mr. Spence`s two daughters. Judge Gilmore stated the following in his decision to void Mr. Spence`s will;

“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 because her children were fathered by a black man? That, in my view, offends not only human sensibilities but also public policy.”

What is interesting in this case is that Mr. Spence never mentioned racial issues in his will as the reason why he decided not to bequeath anything to his daughter Verolin.   Instead the will indicated that they had loss communication and this was the reason he decided not to give anything to his daughter. The Judge in this case never saw anything written by Mr. Spence that indicated that he was a racist, but the Judge nevertheless went behind the scenes and accepted evidence from friends and other witnesses who confirmed the real reason why he left Verolin out of the will was because of race.

It is clear that if Mr. Spence completely disavowed his daughter based on the color of her child’s skin is deplorable and unfortunate. However, Mr. Spence was permitted to have his personal views and to overturn a person’s will based on their thought process is contradictory to the law. Despite the outrage many people may feel when hearing this case, the fact remains that you are not obliged to leave any of your hard earned money to your adult children and you are permitted by law to give more to one than the other if that is your desire. This is testamentary freedom, which unlike the decision by Judge Gilmore, is entrenched in Canadian law.

The court had absolutely no basis for intervening in this case and has created a slippery slope for the intervention of the courts into the future wills of all Canadians. Instead of staying within the boundaries of the will itself, which did not advocate or mention any racist idea, the Judge decided to look back at the history of the deceased and to hear witnesses give evidence about his personal life. Where is the line drawn? What is considered contrary to public policy? Can a joke made 10 years earlier be held against someone after their death? How about their opposition to abortion, immigration policy or any other plethora of views that some people might not agree with? Yes, Mr. Spence may have been racist, but that does not give the court the right to overturn how he chooses to distribute his assets based on his beliefs, however horrendous they might be. Mr. Spence did not give his money to a hate group or anyone who advocates hatred, which is contrary to Canadian Hate Speech laws and public policy. Instead Mr. Spence simply chose not to give any inheritance to one of his adult daughters, which is not against any established Canadian law.

What is worrisome in this case is that it establishes a shocking precedent that can and will create many more cases in which a person’s will can be challenged by anyone who feels they have been short changed by an inheritance.   This decision advocates that your thoughts and personal conservations throughout your life can and will be used against you even in death and that your will is always up for debate and annulation.   This should be a lesson to all who have a last will and testament or who are thinking of creating one, that public policy apparently now dictates that you must be mindful of your private words and thoughts and should always be careful not speak of anything that might in the future be perceived contrary to public policy.