02/13/2015 09:29 EST | Updated 04/15/2015 05:59 EDT

How This Radical Court Ruling Invalidated a Father's Racial Bias

An Ontario judge has pushed the boundaries of legal precedent in a controversial decision, declaring that a will motivated by racial bias was invalid. The decision is even gaining international attention among legal scholars.

The case is known as Spence v BMO Trust. The deceased Mr. Spence left his entire estate of $400,000 to his daughter Donna. He cut his daughter Verolin out of his will, reputedly because of racial bias. Madam Justice Gilmore ruled that this offended public policy, and was therefore rendered void. Once there is no will, the law decrees that each child of the deceased receives an equal share of the estate.

The evidence presented at the trial indicated that Mr. Spence had previously had a close relationship with Verolin, and practically none with Donna. After Verolin formed a conjugal relationship with a white man, he became angered and refused to have any further contact with her. None of this was stated in the will, and the court relied on the evidence of a family friend who nursed Mr. Spence through his final illness.

From the technical perspective of estates law, this decision is a major break from established precedent, and most experts condemn it as a legal error. From a broader perspective, it could be viewed as a natural evolution of the law in line with Canadian societal values.

Critics argue that no child has an entitlement to a parent's estate. However, it is also true that property rights exist only insofar as the state is willing to enforce them. The philosophical underpinning of property rights after death has often been questioned, most recently by economist Thomas Piketty in his book Capital in the Twenty-First Century. In British Columbia, the estates statute has been explicitly modified to override the common law. It provides a recognition of moral obligations to family members, including adult children who are no longer dependants.

There is a long history of wills in which parents attempt to dictate how their children will behave after they are gone, in matters such as religion and marriage. In the past, courts have generally upheld them. Nevertheless, there has always been a recognition that property rights after death are weaker than property rights in life.

There are a number of competing legal issues here, none of which are directly governed by statute law. The enforceability of wills is determined primarily by judge made law, known as the common law.

One of the historical principles in this area is that of testamentary freedom, implying that a person may dispose of his wealth any way he wants, no matter how eccentric. One of the most famous instances of such behaviour was the will of a wealthy Toronto bachelor. He left his fortune to the women who would have the most babies over the 10 years after his death. It became known as the "great stork derby."

In spite of that, the common law does impose limitations against private acts that "offend public policy." For example, a will that requires an heir to do anything that would be illegal or immoral as a condition of inheriting can be invalidated.

We have seen a major change in social sensibilities. As recently as the 1950s, racial and religious discrimination were legal in Canada.

The Supreme Court has stated that the common law may be modified, in a gradual and measured way, to make it more consistent with the values of Canada's Charter of Rights and Freedoms. There has to be a balancing of potentially conflicting values and rights. It could be suggested that in the context of estate matters this choice is somewhat easier. To put it bluntly, the person whose estate is being distributed is dead, while the person who is suffering discrimination is alive.

A testamentary bequest is a private gift from one person to another, and many would argue that the state should not interfere. Certainly, a person while alive can give away as much of his wealth as he wants to a favoured child and exclude the others. However, once a person is gone, the enforcement and validation of his will (through probate) requires the assistance of the publicly funded legal authorities. A racist testament asks the public authorities to connive in a type of discrimination that is illegal if carried out in the broader public arena.

Time will tell whether Justice Gilmore's decision is successful in creating a precedent that other judges will follow. If a higher court such as the Court of Appeal makes a ruling on a legal principle, a lower court judge is bound to follow it even if she thinks it was wrong. If a court at the same level has made it, another judge is supposed to pay attention to it, but is free to disagree if she thinks it was wrong.

A judge who is sympathetic to the view that parents should not discriminate among their children for deplorable reasons will now have a clear precedent to cite. The next judge so inclined will not have to be quite as courageous to make such a ruling. That is how the common law develops: when one judge is willing to make a departure from past norms, and is then followed by others. Ultimately, one of these decisions will be appealed to a higher court, that will have to decide to affirm the development or reject it.

To supporters, Justice Gilmore's decision imbues the common law of estates with Charter values. Detractors view it as a poor decision. Of course, one can find similar criticisms of the innovative decisions of the past that are now taken for granted. The Supreme Court has recently been in a reformist mood. If a case such as Spence came before it, there is a fairly high probability that it would be approved.

In the meantime, the law will be in a state of flux. Anybody who is inclined to make a discriminatory testament is on notice that it may prove to be unenforceable. In reality, there are not many Canadians who want to put such conditions in their wills. This decision is important more for symbolic reasons than because it is a frequently encountered legal problem.


Photo gallery9 People Who Think Casual Racism Is Ok See Gallery