Testamentary Freedom: Spence et al. v. BMO Trust Company

Wills and Estates

In Ontario the law gives testators the freedom to distribute their property freely.  Testamentary freedom is the concept that a testator, in making his or her own will, has the freedom to do what they want with their property on death.   Here is a brief look at the facts and findings of a recent case heard by the Court of Appeal for Ontario that touches on this topic.

Spence et al. v. BMO Trust Company

Testator expressly and unambiguously disinherits applicant because he and she were estranged.  The applicant applied to set aside the will on public policy grounds.  The application judge erred in admitting evidence that the testator had a discriminatory motive for disinheriting the applicant.


The applicant brought an application to set aside her father’s will, which expressly disinherited her and benefited her sister D and D’s children.  The will stated, “I specifically bequeath nothing to my daughter [the applicant], as she has had no communication with me for several years, and has shown no interest in me as her father.”  The applicant adduced extrinsic evidence that the testator disinherited her because she, a black woman, had a child with a white man.  The application judge set aside the entire will as contrary to public policy.  The respondent appealed.


The appeal should be allowed.

Canadian courts will not hesitate to intervene on grounds of public policy where implementation of a testator’s wishes require a testator’s executors or trustees or a named beneficiary to act in a way that collides with public policy.  In this case, however, the will did not require the beneficiaries or the trustee to act in a discriminatory manner or in a manner contrary to law or public policy.  D was not an unworthy heir.  Under Ontario Law the applicant had no legal entitlement to share in the testator’s estate.  It was not only open to the testator to disinherit her, it was open to him to disinherit her on discriminatory grounds without triggering a review by the courts on the grounds of public policy.  Assuming that the testamentary bequest had been facially repugnant in the sense that it disinherited the applicant for expressly stated discriminatory reasons, the bequest would nevertheless be valid as reflecting the testator’s intentional, private disposition of his property – the core aspect of testamentary freedom.  To apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law.  Absent valid legislation to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavory or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.  There was no foundation for the public policy driven review undertaken by the application judge.

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