Aug 10, 2015

Beneficiary’s Purpose Matters: Invalidation of Bequest to Neo-Nazi Group as Against Public Policy Withstands Appeal

McCorkill Estate v McCorkill, 2015 CanLII 14497 (NB CA)

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.

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. For more about this decision, read McInnes Cooper’s Legal Alert: NB Court Decides Bequest to US Neo-Nazi Group is Against Public Policy – and Void. For more about the impact this decision might have on life insurance bequests, read McInnes Cooper’s Legal Update: Court Voids Testamentary Bequest to Neo-Nazi Group as Against Public Policy– What About Life Insurance Bequests?

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 amounts 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.

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

Read the NB Court of Appeal’s brief decision in McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased, 2015 NBCA 50 here.

Read all of McInnes Cooper's legal publications here.

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.

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