Spence et al. v. BMO Trust Company et al.

[Indexed as: Spence v. BMO Trust Co.]

Ontario Reports

Ontario Superior Court of Justice,

Gilmore J.

January 27, 2015

123 O.R. (3d) 611 | 2015 ONSC 615

Case Summary

Wills and estates — Wills — Public policy — Applicant's father making will which disinherited her and benefitted her sister — Testator having had close relationship with applicant and no relationship with his other daughter for many years — Extrinsic evidence establishing that testator disinherited applicant solely because she had child with man who was not black — Will set aside as contrary to public policy despite fact that will itself contained no racist explanation for disinheritance.

The applicant and her father, the deceased, had a close relationship until 2002, when the applicant told the deceased that she was pregnant and that the father of her child was Caucasian. From 2002 until his death in 2013, the deceased would not return the applicant's calls and refused to have anything to do with his grandson. The deceased had no relationship with his other daughter, D, who lived in the United Kingdom. In his last will and testament, made in 2010, the deceased disinherited the applicant "as she has had no communication with me for several years and has shown no interest in me as a father", and distributed his estate to D and her two children. The applicant brought an application to set aside the will. She produced the affidavit of a friend of the deceased, who deposed that the deceased told her on several occasions that he disinherited the applicant because the father of her son was not black. D was properly served but did not take part in the proceeding.

Held, the application should be allowed.

The will should be set aside as contrary to public policy. While the will itself did not, on its face, offend public policy, the extrinsic evidence established that the deceased's reason for disinheriting the applicant was based on a clearly stated racist principle. It offended public policy that D should receive the entire estate simply because her children were fathered by a black man.

McCorkill v. McCorkill Estate, [2014] N.B.J. No. 231, 2014 NBQB 148, 424 N.B.R. (2d) 21, 1 E.T.R. (4th) 41, 377 D.L.R. (4th) 537, 243 A.C.W.S. (3d) 774, consd

Other cases referred to

Canada Trust Co. v. Ontario Human Rights Commission (1990), 1990 CanLII 6849 (ON CA), 74 O.R. (2d) 481, [1990] O.J. No. 615, 69 D.L.R. (4th) 321, 37 O.A.C. 191, 38 E.T.R. 1, 12 C.H.R.R. D/184, 1990 CarswellOnt 486, 20 A.C.W.S. (3d) 736 (C.A.); [page612]

Egerton v. The Earl of Brownlow (1853), 10 E.R. 359, [1853] 4 HLC 484 (U.K. H.L.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46

Evidence Act, R.S.O. 1990, c. E.23

Human Rights Code, 1981, S.O. 1981, c. 53

Succession Law Reform Act, R.S.O. 1990, c. S.26 [as am.]

Authorities referred to

Ziff, Bruce, "Welcome the Newest Unworthy Heir", 1 ETR-CAN-ART 76, Estates and Trust Reports (Articles) 2014

APPLICATION to set aside a will.

Michael S. Deverett, for applicants.

Heather B. Hogan, for respondent BMO Trust Company.

No one appearing for respondents Donna Spence, Kairo Spence-Perkins and Kailen Spence-Perkins.

GILMORE J.: —

Overview

[1] This application was brought for advice and directions in relation to a dispute initiated by the daughter of the deceased against her sister, the other daughter of the deceased, and the trustee, respondent, BMO Trust Company.

[2] The applicant Verolin Spence requested the court set aside the last will and testament of her father, Rector Emanuel Spence, deceased. The deceased's will disinherits her and benefits her respondent sister, Donna Spence, and Donna's two children, the remaining respondents, Kairo Spence-Perkins and Kailen Spence-Perkins. Verolin asserts that the will is void for public policy reasons and should be set aside resulting in an intestacy. An intestacy under the Succession Law Reform Act, R.S.O. 1990, c. S.26 in Ontario would result in the two sisters sharing the estate equally.

[3] Verolin also brings the application on behalf of her son, Alexander Spence, born April 26, 2003. Alexander, Kairo and Kailen are the grandchildren of the deceased. Verolin asks the court to disregard a statutory limitation period that expired over a year ago and grant dependant support and interim costs to her and Alexander, for whom she acted as litigation guardian.

[4] The respondent BMO Trust Company, in its capacity as estate trustee with a will, opposes the applicants' request for relief.

[5] After hearing submissions, the court determined that the will would be set aside on the grounds that a provision of the [page613] will offended public policy. Given that decision, it was not necessary for the court to determine the applicants' request for leave to proceed with an application for dependent's relief. In the event that issue had to be decided, I would have found that the applicants did not meet the test for leave and would have denied the claim for dependent's support and interim costs.

[6] In the result, it was further ordered on the hearing date that BMO's costs would be paid out of the estate and that the applicants' legal costs of $11,300 would also be paid out of the estate. The value of the estate as of the date of hearing the application was $398,875.

[7] Given that BMO's appointment as estate trustee became void as a result of the intestacy, counsel were invited to provide further brief written submissions in the event that the distribution of the estate on an ongoing basis became an issue.

[8] Affidavits were submitted in this case by Verolin, as well as Imogene Parchment, on behalf of the applicants. The respondent BMO provided a factum and a six-paragraph affidavit of Kathy Melidy, sworn January 5, 2015.

[9] The endorsement of January 13, 2015 indicates that reasons would follow with respect to the setting aside of the will. These are the reasons.

Background Facts

[10] The deceased died on January 25, 2013 at the age of 71 and was predeceased by his wife, Norma Spence, who died on June 25, 2011. Verolin and Donna are the deceased's two adult children by a previous marriage. They are 51 and 52 years old respectively. Alexander is Verolin's 11-year-old child, born April 26, 2003, and Verolin acted as his litigation guardian. Donna's two minor children, Kairo and Kailen, live with her in the United Kingdom. Donna did not file a notice of appearance, nor attend on the hearing of the application, although properly served.

[11] The Office of the Children's Lawyer was served with all of the documentation in this case. They did not appear at the hearing on the grounds that they were concerned about an increase in legal costs and duplication of effort. They have asked to be advised of the result of the hearing. BMO was the trustee of the deceased's estate until the will was set aside as a result of this judgment.

[12] When the deceased separated from Verolin and Donna's mother, Verolin began to reside exclusively with the deceased and Donna resided exclusively with her mother. After separation, Donna and Verolin never lived together with the same parent, nor did they communicate with each other. [page614]

[13] In 1979, the deceased immigrated to Canada. Verolin remained in London, England to complete her secondary school education. Donna remained in the United Kingdom and never immigrated to Canada. In January 1984, Verolin completed her General Certificate of Education examination from the University of London and immigrated to Canada to reside with her father. At no time when Verolin was living with her father, or in communication with him, did he ever express an interest in visiting Donna, nor did Donna ever visit him during the time he lived in England and Canada.

[14] From 1987 to 1989, Verolin attended full-time undergraduate studies at York University in Toronto. She lived with her father during this time and graduated from York University with a Bachelor of Arts degree in history.

[15] From 1989 to 1990, the deceased supported Verolin while she attended full-time at the University of London, Institute of Education in England. She graduated with a post-graduate certificate in education and business studies and economics on August 1, 1990.

[16] From 1990 to 1991, the deceased supported Verolin while she attended full-time studies at the University of London, Institute of Education in England and she graduated with a Master of Arts degree in education in multi-cultural urban areas on November 20, 1991.

[17] Verolin returned to Canada from her graduate studies in 1992, and lived with her father at his home on [address omitted], Maple, Ontario. Around that time, the deceased advised his daughter that he had made a will which provided that she would inherit [address omitted]. The deceased gave Verolin a set of keys allowing her unlimited and continued use of that property.

[18] From 1994 to 1997, the deceased supported Verolin while she attended full-time studies at the New York School of Law at Queen's College. She graduated with a law degree on August 1, 1997. Verolin's affidavit indicated that her father placed a great deal of emphasis on education and that he was very pleased and proud of her educational accomplishments. She deposed that he had provided her with support and tuition for her eight years of post-secondary education and that they had an excellent relationship.

[19] In September 2002, Verolin's relationship with her father came to a dramatic end. She told her father that she was pregnant and that the father of her child was Caucasian. Her father exclaimed that he was ashamed of Verolin and from that point onwards, the deceased restricted his communication with her. [page615] He made it clear to Verolin, according to her affidavit, that he would not allow a white man's child in his house.

[20] From 2002 until his death in 2013, the deceased would not return Verolin's calls and refused to have anything to do with his grandson Alexander.

[21] Verolin is aware that from the time of the separation of her parents, Donna had little or no contact with the deceased. She certainly never lived with him, nor did her father express any intention to contact Donna. In fact, Donna's name never came up in any of their conversations. Kairo and Kailen have never met the deceased, nor did they have any contact with him. As far as Verolin is aware, her father never provided any financial support to Donna, Kairo or Kailen.

[22] The deceased's last will and testament, dated May 12, 2010, includes a clause specifically pertaining to the disinheritance of Verolin, at p. 4, para. 5(h), which is reproduced below:

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.

[23] The will appoints BMO as estate trustee and distributes the estate to Donna and her two children. BMO obtained a certificate of appointment of estate trustee with a will on May 1, 2013, and has been administering the estate since that date, pursuant to the certificate of appointment.

Affidavit of Imogene Parchment

[24] Imogene Parchment was a friend of the deceased and deposed that she had known the deceased's wife, Norma Spence, for over 35 years. Norma and the deceased did not have any children. Ms. Parchment was aware that the deceased had two children from a previous relationship, namely, Verolin and Donna.

[25] Ms. Parchment met Norma when they worked as nurses at North York Branson Hospital in 1981. They were best friends from 1981 until Norma died on June 25, 2011. As Norma's best friend, Ms. Parchment spent a lot of time with her and the deceased, and met Verolin at their home many times when Verolin was living with her father while attending York University.

[26] Ms. Parchment deposed that before Norma died, the deceased had a falling out with both of his daughters. When he found out that the father of Verolin's son was not black, he told Ms. Parchment that he had no further use for Verolin and her "bastard white son". He told her on several occasions that the reason he disinherited Verolin and her son was because the [page616] father of her son was white. He told her that he changed his will on May 12, 2010 because he wanted to exclude Verolin and include Donna and her two sons, since the father of Donna's sons was black.

[27] Ms. Parchment deposed that after the deceased signed his will on May 12, 2010, he told her that he had had a fight with his daughter Donna on the telephone and that he would never call her again, nor did he want anything to do with her.

[28] Ms. Parchment cared for Norma during her illness and she asked her friend to take care of her husband while she was in hospital. After Norma's death, Ms. Parchment kept her promise to Norma and took care of the deceased until he died. Ms. Parchment's evidence was that she visited the deceased several times every week to attend to his needs and that he was a difficult person. He had an explosive temper and was demanding. He had virtually no friends and mistreated his agency caregivers to the point where the agency stopped sending them. About two weeks before his death, Ms. Parchment spoke with the deceased about the possibility of reconciling with his two daughters. The deceased went into a rage, banging his fists on the table and told her that he had changed his will, removing both his daughters and their children as beneficiaries.

[29] On December 25, 2012, the deceased suffered a stroke. While in hospital, no one visited him, other than Ms. Parchment and his doctors. The deceased died on January 25, 2013. The only people who attended his funeral were friends of Norma's, and Ms. Parchment deposed that she was the closest friend to the deceased before he died.

[30] Based on Ms. Parchment's knowledge, Donna never visited the deceased, nor did he visit her in England. Donna told Ms. Parchment by phone after the deceased died that she had never been to Canada. Donna did not come to the deceased's funeral. Donna never expressed that she was sorry that she would not be attending her father's funeral.

[31] Subsequent to his death, Ms. Parchment contacted Kathy Melidy, the trust officer at BMO, and made arrangements to provide her with the key to the deceased's residence. She mentioned that the deceased had told her that he had made another will after May 12, 2010. No will has subsequently been discovered.

[32] Ms. Parchment's evidence in her affidavit was that it was clear to her that the reason the deceased excluded Verolin from his will and included Donna and her sons was because Verolin had a child with a man who was not black and he wanted to discriminate against her. [page617]

The Issues

Is the will void on grounds of public policy?

[33] The applicants take the position that the will should be set aside based on public policy resulting in an intestacy. The applicants rely on the Parchment affidavit, which has not been challenged by BMO, nor was Ms. Parchment cross-examined. The uncontradicted evidence of Ms. Parchment is that the reason the deceased gifted money to Donna and her children was to make a point to Verolin in relation to her having a child with a Caucasian man.

[34] BMO's position is that public policy does not apply absent a testamentary document that is manifestly contrary to the public interest. Further, the applicant's extrinsic evidence as to the alleged utterances of the deceased is immaterial to the issue and in any event do not comply with the Ontario Evidence Act, R.S.O. 1990, c. E.23.

[35] The leading authority on the doctrine of public policy is Canada Trustco v. Ontario Human Rights Commission, also known as Leonard (Re) (1990), 1990 CanLII 6849 (ON CA), 74 O.R. (2d) 481, [1990] O.J. No. 615, 1990 CarswellOnt 486 (C.A.). In that case, the court considered whether the terms of a trust established by Ruben Wells Leonard was void by (a) reason of public policy as declared in the Human Rights Code, 1981, S.O. 1981, c. 53; (b) other public policy; (c) discrimination because of race, creed, citizenship, ancestry, place of origin, colour, ethnic origin, sex, handicap or otherwise; or (d) certainty.

[36] The lower court found that the trust provisions were not invalid for any of the reasons set out above. Specifically, the trust document opened with four recitals that required that the recipient of any scholarships from the trust must be white, Christian, of British nationality or parentage, and that only 25 per cent of the recipients of the scholarships could be women.

[37] The Court of Appeal for Ontario found that it was in the interests of society that the court intervene on the grounds of public policy. While it recognized the freedom of an owner of property to dispose of his or her property as he or she chose and that this was an important interest that has long been recognized in society, the court held that the trust was premised on notions of racism and religious superiority, which contravened contemporary public policy. The court struck out the recitals and removed all restrictions with respect to race, colour, creed, religion, ethnic origin and sex.

[38] BMO argued that the public policy doctrine does not apply in a case such as this in which the granting document [page618] (i.e., the will) does not say anything that would contravene public policy or create harm to the public. There is no mention in the will that Verolin is being disinherited because the father of her child is not black. In fact, the will states that the basis for Verolin's disinheritance was a lack of communication with her father. As of the date when Verolin informed her father of the parentage of her child, there had been no communication between Verolin and her father, and, as such, the relevant paragraph of the will cannot be impugned.

[39] The applicants rely on McCorkill v. McCorkill Estate, [2014] N.B.J. No. 231, 2014 NBQB 148. In that case, the court determined that the payment or 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. There were many intervenors in the case, including the Province of New Brunswick, B'Nai Brith, the Centre for Israel and Jewish Affairs and the Canadian Association for Free Expression. The court held that the information disseminated by National Alliance was hate propaganda, which it described as "malodorous, malicious and evil" and was of the kind targeted by the Criminal Code, R.S.C. 1985, c. C-46. The court held that the dissemination of hate propaganda by the National Alliance violated public policy of Canada. The residual request to National Alliance in the will of Harry Robert McCorkill was found to be void.

[40] BMO noted that the McCorkill case has not escaped criticism and that the facts in the case at bar are very different from the facts in McCorkill. In McCorkill, the National Alliance was a corporation which had a long record of publishing hate speech. The court likened the gift in the will to financing hate speech and acknowledged the narrow circumstances of the case. The facts in the case were unusual given the number of intervenors and given the court's own comments about the unique nature of the case.

[41] BMO submits that the facts in the case at bar are very different as the case at bar involves a gift of residue to the deceased's daughter in the United Kingdom. There is nothing manifestly harmful in that as Donna and her children are individuals and there is no evidence that Donna would do anything harmful with her inheritance. On the contrary, one must only look at the granting document which sets out that the reason for the disinheritance which is clearly stated and based on the deceased and Verolin not having talked in years.

[42] BMO points out that the courts have not looked at the intentions of the deceased in public policy cases and will do so [page619] only where the validity of the will is in issue, or if there is any ambiguity or uncertainty on the face of the will. None of those factors apply in this case. The relevant terms of the will are unambiguous and the validity of the will has never been challenged.

[43] The applicants rely on the McCorkill case as being an example of a fact situation in which a will was set aside, even when the terms of the will on its face did not offend public policy. Specifically, the applicants rely on the analysis in the McCorkill case, in which Grant J. refers to Egerton v. The Earl of Brownlow (1853), 10 E.R. 359, [1853] 4 HLC 484 (U.K. H.L.), at para. 84:

The owner of an estate may himself do many things which he could not (by a condition) compel his successor to do. One example is sufficient. He may leave his land uncultivated, but he cannot, by a condition, compel his successor do so. The law does not interfere with the owner and compel him to cultivate his land (though it be for the public good that land should be cultivated) so far the law respects ownership; but when, by a condition he attempts to compel his successor to do what is against the public good, the law steps in and pronounces the condition void.

[44] While it is true that the relevant paragraph in the deceased's will does not, on its face, offend public policy, I find that, like McCorkill, the matter bears further scrutiny. The court has before it the uncontradicted evidence of Ms. Parchment and the applicant herself. I note that Ms. Parchment has no stake in this case. She is neither a beneficiary, nor an executor and stands to gain nothing by her participation in this application. She was friends with both the deceased and his wife. She took care of the deceased because of her friend's dying request and despite the fact that the deceased had a rather explosive temper and unappreciative manner.

[45] There is therefore no reason not to accept the evidence of Ms. Parchment as to the utterances of the deceased with respect to his daughter Verolin and an explanation as to why she would be left out of the will. Those statements, taken on their face, express a very specific reason for disinheritance, that is, that Verolin had a child by a man who was not black. Both the applicant's affidavit and that of Ms. Parchment make it very clear that at the moment of discovering this fact, the deceased stopped communicating with Verolin, notwithstanding her efforts to try to resurrect such communication.

[46] There is no evidence that prior to learning about the child's parentage, Verolin had anything but a good and healthy relationship with her father. In fact, her father financed many years of post-secondary education for Verolin, both in Canada, the United States and England. There can be no explanation [page620] for such a sudden and complete cessation of communication between the deceased and Verolin other than the information received by the deceased about the father of his grandson.

[47] What adds to the unique facts in this case is that the deceased's other daughter, Donna, did not file a notice of appearance, nor did she attend at the hearing of the application, although properly served. There is therefore no evidence to contradict that of Verolin and Ms. Parchment that the deceased had no relationship with his daughter Donna, nor had he ever seen his grandchildren Kairo and Kailen.

[48] In Professor Bruce Ziff's article, "Welcome the Newest Unworthy Heir", 1 ETR-CAN-ART 76, Estates and Trust Reports (Articles) 2014, he raises important questions with respect to the application of the doctrine of public policy when it comes to private gifts made through wills. Professor Ziff specifically grapples with the issue in McCorkill, with respect to whether or not a will should be set aside where the granting document itself does not contain any impugned terms. Professor Ziff acknowledges that fixing on stipulations such as terms which expressly recite discriminatory preferences are important but that such elements were not necessary in the McCorkill case because the racist preferences were found memorialized in the published works of the donee. Professor Ziff concludes that despite issues with respect to litigation floodgates and the necessity of having specifically recited terms in the granting document, that there was something absolutely correct about the holding in the McCorkill case.

[49] Were it not for the unchallenged evidence of Ms. Parchment and Verolin, the court would have no alternative but to go no further than the wording in the will. However, 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.

[50] For the reasons given above, the will is set aside. Pursuant to the Succession Law Reform Act in Ontario, there is a resulting intestacy and the deceased's estate shall therefore be divided equally between Verolin and Donna.

[51] The applicants' solicitors shall receive $11,300 from the estate in costs, inclusive of disbursements and HST. BMO's costs shall also be paid out of the estate. Given that the intestacy results in BMO's appointment as estate trustee becoming void, [page621] counsel are at liberty to provide short written submissions to me in the event there are issues with respect to the distribution of the estate ongoing.

Application allowed.

End of Document