Can You Change A Bad Will?

Can You Change A Bad Will?

Can you leave adult children out of your will because you disagree with their choice of partner? Can you overturn a bad will?

The Ontario Court of Appeal (ONCA) says so.

When a grandfather discriminated against his daughter because of her child’s race, the Superior Court of Justice ruled his will offended Ontario public policy on racial equity. But on March 8, 2019, ONCA overturned the decision, sending a clear message to wills and estates lawyers about testamentary capacity.

Rector Emanuel (Eric) Spence, a Jamaican who died in 2013, wrote daughter Verolin out of his will and omitted grandson A.S. altogether. Verolin is now 52 and A.S. close to 13. She lived with her father after her parents separated and followed him to Canada a few years after he emigrated in 1979. A.S. never met his grandfather. Verolin’s sister, Donna, 51, stayed with her mother in England and still lives there.

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Should You Fight A Bad Will?

bad will

Eric’s will, written in 2010, explictly stated Verolin was to be left nothing “as she has had no communication with me for several years and has shown no interest in me as her father” (at para 10). His estate was left to Donna, her sons and the residual bequest (anything left over) to a cousin.

Verolin contradicted the statement. In an affadavit supported by Eric’s occasional caregiver, she alleged her father told her he was ashamed her partner was white. Verolin retorted that her father “…made it very clear to me that he would not allow a “white man’s child” in his house” (para 14). The caregiver’s affadavit attested that Verolin and A.S. were deliberately and clearly excluded “because he wanted to discriminate against Verolin because the father of her son was a white man” (para 15). Although Verolin stated an earlier will left her Eric’s home, the 2010 version revoked all earlier wills.

Bad Will – Extrinsic Evidence

In reviewing the will, the Superior Court of Justice ruled that, on the face of it, there were had no public policy implications. However, the extrinsic evidence (the affadavits) made it clear Verolin had been disinherited for racist reasons that offended “not only human sensibilities but public policy” (para 19). Due to the discrimination, which was “clear” and “unchallenged”, the judge ruled the will should be set aside and the estate shared equally by the sisters.

Eric’s executor, BMO Trust, appealed the decision about the “bad will.” ONCA was asked to determine if the extrinsic evidence was admissable, if the judge erred in assessing it and improperly interfered with Eric’s testamentary freedom and whether the judge should have set aside the entire will or just the residual bequest.

Estate Disputes Are Complex

ONCA found the right to dispose of your possessions as you see fit is deeply entrenched in common law. Ontario law excludes testators (the person who wills the property) from any obligations to independent adult children, although the courts recognize adequate, just and equitable provision must be made for a surviving spouse and children.

Read more: To Contest or Not to Contest

The court acknowledged some wills  do include provisions, such as requiring a beneficiary to change religions, contrary to public policy. But since Eric’s will didn’t state Verolin and A.S. were excluded due to race, the Canadian Charter of Rights and Freedoms and Human Rights Code didn’t apply. ONCA allowed the appeal, upholding his right to freely choose and disallowing admission of extrinsic evidence to establish a will’s intent or question bequests. As Halsbury’s Laws of England (1914) observes: “Eccentricity alone does not prevent a man from disposing of his property by will.”

Wills and estates can be complex. If you want to fight a bad will, call our Toronto estate lawyers. For questions about making or contesting a will, contact us using the live chat function in the bottom right of the screen.