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How Public Policy Can Affect A Will

How Public Policy Can Affect A Will

Posted by Avery Zeidman | Published October 07, 2015

A will is a legally binding document that among other things, allows a person to decide how they would like their assets disbursed after their death and also dictate the appointed guardians of any children that may suffer their loss. It is very important that individuals have a will in place because the future is uncertain, particularly with respect to accidental death.

Young or old, it is essential that individuals take the necessary steps to ensure that their wishes are followed in the event of their death. In the absence of a will, it will be left up to the Courts to best decide how our assets and dependents should be managed. For more general information about wills, visit here.

The case of Spence v. BMO Trust Company has brought to light the role that public policy can play when formulating and executing a will. In this case, the will of a seventy-one year old deceased black Jamaican-born minister was challenged when he left his entire estate (worth around $400,000.00) to a fifty-two year old daughter he hadn’t seen in fifty years, as opposed to the fifty-one year old daughter who grew up with him and he gave accolades to, until her pregnancy.

Eric Spence the father of the two daughters, Verolin and Donna, died in January of 2013. When he separated from their mother, his daughter Verolin Spence remained with him, while his other daughter Donna Spence, left with her mother. After the separation, Donna did not have any contact with her father or sister and vice versa.

Five years after Eric migrated to Canada, Verolin followed, after completing her studies in London.  In Canada, she continued her studies with some financial help from her father who was quite proud of her. Evidence showed that they had a strong relationship during this time. In 1992, he drew up a will that bequeathed her his home upon his passing.

Allegedly, in September of 2002 everything changed, when Verolin informed Mr. Spence that she was pregnant with a Caucasian man. He made it clear that he was ashamed of her, proceeded to minimize communication with her and did not claim her biracial son as his legitimate grandchild. In May of 2010 he changed his will, citing specifically that Verolin had no communication with him for years and did not maintain a relationship with him.

Verolin beseeched the Courts to set aside her father’s last remaining will on the basis that it violated public policy and was therefore void. Her evidence to support this claim included an affidavit from a close friend of Eric’s wife who said that he told her on more than one occasion that he had disowned his daughter Verolin because the father of her son was Caucasian.

Estate trustee BMO argued that the wording of the will bore no such racial categorization and that public policy should not be applied in the case. They allege that the will was formulated based on the estrangement between father and daughter and not discrimination.

Verolin’s lawyer countered by pointing out many other cases where evidence beyond the expressed written word in a will had been used to determine whether or not the will had violated public policy. The Court agreed with Verolin and based on the unchallenged evidence of her father’s blatant racism, the will was set aside and the estate was ordered to be split between the two daughters.

This decision is being appealed by Donna Spence and BMO. They insist that the will should be reinstated and that the Courts should not interfere with a person’s wishes after their death. They believe that it would be setting a bad precedent and people’s “reasoning” would come under constant scrutiny, thereby diminishing the entire purpose of a will.

At the Zeidman Law offices, our Vaughan family and divorce lawyers have the experience and professionalism needed to represent your issues in court. We are readily available to assess your case and will help you resolve the best course of action given your unique situation.   You may call, come to our offices or visit us online to begin the process.

 

 
 
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