Will your Wishes on Death Stand up to a Challenge?

Will your Wishes on Death Stand up to a Challenge?

Posted July 21, 2015 Category: Individuals/Families

Thanks in part to the great devolution of wealth to baby boomers as they inherit their parent’s estates; the legal landscape of estate planning is rapidly evolving.  In Spence v. BMO Trust Company, an Ontario trial court judge set aside a properly drafted will on the grounds that it violated public policy.

Unlike other wills that have been set aside due to public policy violations, the language in the will contained nothing that offended public policy.  It didn’t contain a clause leaving a gift to a racist organization, nor did it contain a trust leaving a scholarship fund exclusively to benefit students who were Caucasian, Christian, of British descent and mostly male.

In this case the testator was a widower with two surviving adult daughters, age 51 and 52.  At the time of his death, the testator had been estranged from one of his daughters since the time of his divorce over three decades prior.  The testator had lived with the other daughter and supported her financially as she obtained numerous post secondary degrees.  In short, they enjoyed a healthy father-daughter relationship for many years until the daughter had a child who was not black.  At that point, he cut off all communication and removed her as the sole beneficiary of his estate to be replaced by his daughter in England to whom he had not spoken in about 35 years.

The will stated that he was disinheriting the daughter because “she has had no communication with me for several years and has shown no interest in me as a father”.  The disappointed daughter challenged the will on the basis of a public policy violation and succeeded.  The Court set aside the will, resulting in intestacy, effectively leaving the $400,000 estate to each daughter equally.

The general rule is that a will can only be set aside if it is invalid (due to undue influence, coercion, incapacity) or if the language of the will is ambiguous or uncertain.  Courts work to balance the testator’s right to leave their estate as desired against the entitlement of surviving children and spouses; however, in Ontario a person is legally able to disinherit a self-sufficient adult child in many situations.

This decision is surprising, given the facts, and we will have to wait and see if this ruling is challenged.  In the meantime, take the time to review your will on an annual basis to ensure your wishes will stand up to a challenge.

Posted July 21, 2015 Category: Individuals/Families

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