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Old-Fashioned Will And Testament

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An Ontario court judge has ruled that a Toronto minister could not disinherit his daughter for having a mixed-race child, creating new grounds to challenge a will based on perceived intolerance that breaches human rights standards.

A January ruling by Ontario Superior Court Justice Cory Gilmore has shifted the landscape in estate law, giving judges the power to strike provisions from a will because of the deceased person's racist beliefs, even if the will contains no racist language.

Emanuel Spence, a black minister, cut off all contact with his daughter, Verolin Spence, in 2002 after she told him she was pregnant with a child whose father was white. Ms. Spence said her father told her he would not allow a white man's child in his house.

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After Mr. Spence's death in 2013 at the age of 71, Ms. Spence challenged her father's will, which left his entire $399,000 estate to his other daughter, Donna, and her children, even though they were also estranged from him and they hadn't seen each other in decades. Donna Spence did not participate in the trial, but the trustee overseeing the estate, BMO Trust Co., argued for upholding the will as it was written.

Mr. Spence wrote in his will that he bequeathed nothing to Verolin, "as she has had no communication with me for several years and has shown no interest in me as a father."

Although the explanation contained no suggestion of racism, Justice Gilmore said she was persuaded by "uncontradicted evidence" from a witness that he was in fact motivated by his hatred for white people.

Justice Gilmore ruled Mr. Spence's treatment of his daughter breached "public policy" standards, which allow provisions in wills to be overturned when they offend human rights standards.

"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?" Justice Gilmore wrote in her ruling. "That, in my view, offends not only human sensibilities but also public policy."

Estate lawyer Les Kotzer, who was not involved in the case, said many previous rulings have established that clearly racist provisions will not be upheld in a will, such a bequeathing money to a racist hate group, or including a provision in a will forbidding a beneficiary from marrying outside of the family's faith or race in the future.

But he said he has never seen a will overturned when no specific provision is racist. He said the ruling expands previous definitions of what offends public policy standards, and could open the door for many others to challenge being excluded from a will based on their perceptions of deceased parent's intolerance in a variety of areas.

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"It's sort of a slippery slope. If this continues, what happens next?" Mr. Kotzer said. "Do they look beyond, into the life of everybody? Can anybody make a challenge, bring witnesses and talk about the man's life. … Does he have to say a racist word to one person, to 10 people? What if someone overheard him tell a joke?"

Lawyer Michael Deverett, who represented Ms. Spence, said he does not believe the ruling will lead to a flood of similar claims because it is unusual to have a case where there is witness testimony demonstrating clearly racist motives that breach public policy standards.

Mr. Deverett presented witness testimony from Mr. Spence's long-time caregiver, who said that on several occasions Mr. Spence told her he disinherited his daughter because she had a child with a white man, referring to the child as her "bastard white son." Imogene Parchment described Mr. Spence as a difficult person with an explosive temper who had virtually no friends, and had no visitors while in hospital before his death.

"The facts are fairly unique, in the sense we had a witness who knew the [deceased] very well and was able to give definitive evidence as to his intentions," Mr. Deverett said.

Mr. Deverett said if Mr. Spence had actually written in his will that he was disinheriting his daughter for having a mixed-race child, the provision would likely have been easily challenged.

"The question is, because he didn't put that in his will, do we just turn a blind eye?" he asked.

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Justice Gilmore acknowledged in her decision that she would have accepted Mr. Spence's explanation for excluding his daughter from the will if not for other evidence that his decision "was one based on a clearly stated racist principle."

Mr. Kotzer said he tells clients who have decided to disinherit a child to write an accompanying letter explaining the rationale in case the decision is challenged in court. The latest case makes clarity about their motives even more important, he said.

"I think people have to be aware of this," he said. "I'm just surprised that the judge would go beyond the four corners or walls of the will, and start hearing evidence about his personal life. Where do you draw the line?"

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