NB Court Decides Bequest to US Neo-Nazi Group is Against Public Policy – and Void in McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased
June 9, 2014
By Catherine D.A. Watson Coles, QC, Partner at McInnes Cooper,
Marc-Antoine Chiasson, Partner at McInnes Cooper
Note: On July 30, 2015 the NB Court of Appeal dismissed the Canadian Association for Free Expression’s (an intervenor in favour of the National Alliance) appeal of this decision. 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 June 5, 2014 the NB Court of Queen’s Bench decided both the information US-based National Alliance (NA) disseminates and the NA’s purpose are against Canadian public policy – and so is the gift an NB man left to the NA in his will. Based on this decision, there are limits to not only what you leave your money for – but also to whom you leave it.
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. After Mr. McCorkill died, his sister asked the NB Court to void the bequest because it was illegal and/or against public policy because the NA and its activities breach Canadian law. The NA denied this and argued that regardless, the Court could not void the gift based on the beneficiary’s identity, only the specific purposes attached to the bequest – and there were none.
In strongly worded and unequivocal reasons, the NB Court of Queen’s Bench decided the bequest to the NA is invalid. No other Canadian Court is required to follow the decision, but could choose to do so because it is based on Canadian 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:
- Hate Propoganda. McCorkill’s sister submitted extensive evidence about the NA’s purposes and activities – and based on it, the Court decided the information the NA disseminates is “hate propaganda”.
- Not in Canada. Dissemination of the NA’s writings might be legal in the US – but it is illegal in Canada: public incitement of hatred is a criminal offence here.
- Against Public Policy. Activity that is illegal – and also contrary to the values of the Canadian Charter of Rights, Provincial human rights laws and international conventions promoting equality and dignity of the person and prohibiting discrimination on the basis of race and ethnic origin – is against Canadian and NB public policy.
- The Character of the Beneficiary. The evidence proved that the NA’s identity was indistinguishable from the purpose for which Mr. McCorkill intended the bequest to be used: the only thing the NA would or could do with the bequest was to further its illegal purposes.
- Flood Gates Reversed. The Court quickly rejected the argument that voiding the gift would lead to a flood of estates litigation – and countered that not voiding it could lead to a flood of illegal gifts.
Courts rarely interfere with a person’s freedom to choose who will receive her assets after her death on the basis it’s against public policy – and rarer still based on who the beneficiary is, as opposed to the purpose for which the giver says the bequest must be used. The Court’s key decision that the NA’s identity and its purpose are indistinguishable was heavily influenced by the volume and nature of the evidence and the unique facts, but it’s now clear that there are limits to what you leave your money for – and to whom you leave it. 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.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Estates and 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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