Wills that 'shock the conscience' : an Australian perspective on Spence V BMO Trust Company

Is there any judicial recourse for the child of a deceased person who finds themselves excluded from their parent’s will for what is believed to be a discriminatory motivation? The 2015 decision of Spence v BMO Trust Company1 determined by Gilmore J in the Ontario Superior Court of Justice, and the related 2016 appeal decision of the same name2 decided by Justices of Appeal Cronk, Lauwers and van Rensburg in the Court of Appeal for Ontario, address this question in the context of a will made by a testator that excluded one of his two daughters from provision on the basis that the excluded daughter had given birth to a child fathered by a white man. At first instance, Gilmore J held that the testator’s will was void for reasons of public policy. On appeal, the decision was overturned and the will was held to be valid. The decisions traverse various issues, including the paramountcy of testamentary freedom in the history of succession law, the extent to which public policy considerations may curtail that freedom of testation, principles in the construction of wills, and the admissibility of extrinsic evidence in succession matters. This article considers the two recent Ontario decisions and the approach of Australian courts.