Law Times

Page 12 March 16, 2015 • Law Times www.lawtimesnews.com lawyers surprised after judge rewrites racist will Case raises questions about use of extrinsic evidence in estates matters By JULiUs meLNiTZer For Law Times here are very good rea- sons behind the rule excluding extrinsic ev- idence in civil cases — perhaps nowhere more so than in estates litigation — as the re- cent decision of the Ontario Su- perior Court in Spence v. BMO Trust Co. demonstrates. Verolin Spence, a minister's daughter, challenged her father's will after his death in January 2013 because it offended public policy. Verolin testified that her fa- ther had ended their relation- ship in 2002 after she told him a white man had fathered her son. From that point on, the minister didn't return Verolin's calls and had no contact with his grand- son. The difficulty was the will didn't speak to the racial issue. It said merely that he was disin- heriting Verolin as she had had "no communication with me for several years and has shown no interest in me as a father." Rather, the evidence on the public policy point came by way of affidavit from the minister's caregiver, who stated the minis- ter had told her he had changed his will in May 2010 so he could leave his $400,000 estate to his daughter, Donna, a resident of Britain, and her two sons, whose father was black. The minister also told the caregiver on several occasions he had disinherited Verolin and her son because the father was white. As well the caregiver's affida- vit stated that, soon after chang- ing his will, the minister had a falling out with Donna and ended their relationship. Donna took no part in the proceedings related to the will, but BMO Trust, the estate trust- ee, argued the public policy rule didn't apply unless something in the will was in itself contrary to the public interest. Although BMO Trust didn't challenge the affidavits, the trustee argued extrinsic evidence of the racist remarks was inadmissible. Justice Cory Gilmore set aside the will and divided the estate equally between the two daughters pursuant to the Suc- cession Law Reform Act. "Were it not for the unchal- lenged evidence of Ms. Parch- ment [the caregiver] and Vero- lin, the court would have no alternative but to go no further than the wording in the will," wrote Gilmore. "However, it is clear and un- contradicted, in my view, that the reason for disinheriting Verolin, as articulated by the deceased, was one based on a clearly stated racist principle." Wills and estates lawyers say the decision runs contrary to the general principle that a testa- tor's intentions aren't admissible in evidence. "This is crazy," says Anne Posno of Lenczner Slaght Royce Smith Griffin LLP in Toronto. "The trial judge let in inad- missible evidence and that put her in an impossible position." To the extent other decisions affirm or follow the ruling, Pos- no says it could open a Pandora's box. "The case opens the f lood- gates to disappointed ben- eficiaries coming to court and prolonging trials with self-inter- ested evidence regarding their beliefs about the testator's inten- tions," she says. Howard Carr, a partner at Fasken Martineau DuMoulin LLP in Toronto, calls the de- cision a "dramatic" one that concerns the profession. "It raises the question wheth- er judges are becoming more proactive when they see things they don't like," he says. "Certainly, Spence engaged some judicial creativity." Carr also says the decision is unusual because "the judge rewrote the will and did it us- ing extrinsic evidence." Still, he notes Spence "is not part of a trend" and says judges aren't using that type of reasoning to deal with provisions they find offensive in a general sense. As well, Carr points out that parents may not wish to leave part of their estate to one or more of their children for a host of reasons. "And then how does the court determine what's appro- priate and what's inappropri- ate?" he asks. "What would really frighten advisers and parents is juris- prudence that allows judges to rewrite wills when they decide that the reason for the testator's actions are inappropriate." In many cases, intestacy would result. "That is a very crude and unsatisfactory mechanism that may only work out equitably and fairly by happenstance," says Carr. LT FOCUS Untitled-2 1 2015-01-20 1:52 PM T 'Certainly, Spence engaged some judicial creativity,' says Howard Carr.

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