Beneficiary’s Purpose Matters: Invalidation of Bequest to Neo-Nazi Group as Against Public Policy Withstands Appeal in McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased

Note: On June 9, 2016, the Supreme Court of Canada dismissed the National Alliance’s application for leave to appeal the New Brunswick Court of Appeal’s decision in this case.

On July 30, 2015 the NB Court of Appeal decided the invalidation of an NB man’s gift to US-based National Alliance (NA) in his will, because the information the NA disseminates and its purpose are against Canadian public policy, will stand. It’s rare that courts interfere with a person’s freedom to choose to whom to gift her assets after her death on the basis it’s against public policy. It’s now clear that there are limits to whom you leave your money as well as for what purpose.

In McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased, Mr. McCorkill left all of his estate to the NA in his will. His sister challenged the bequest on the basis was illegal and/or against public policy because the NA and its activities breach Canadian law. The Estate maintained the bequest was proper. There were three intervenors: one supporting the Estate, and two supporting the sister. In strongly worded and unequivocal reasons, the NB Court of Queen’s Bench invalidated the bequest.

The intervenor supporting the Estate appealed. In a succinct decision, the NB Court of Appeal said it substantially agreed with the “essential features” of the Queen’s Bench Court’s reasons. It’s notable that the Appeal Court awarded a relatively large amount of costs ($9,000 – $3,000 to each of the sister and the intervenors), and the unsuccessful intervenor must pay them; it’s uncommon for an intervenor to be ordered to pay costs.

No other Canadian Court is required to follow the decision but could choose to do so because it’s based on laws (the Criminal Code of Canada, the Canadian Charter of Rights and Freedoms, international conventions to which Canada is a party, and Provincial human rights laws generally) that apply across Canada. And this decision might have an impact on life insurance bequests as well as bequests in wills.

McInnes Cooper’s Marc-Antoine Chiasson represented the successful sister at both the Court of Queen’s Bench and the Court of Appeal.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Estates & Trusts Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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