McCorkill appeal – trial decision to bar bequest to neo-Nazi group upheld

On July 30, 2015, the New Brunswick Court of Appeal heard arguments for the proposed appeal of the trial decision in the McCorkill v. McCorkill Estate (“McCorkill”) matter¹. The trial decision was unanimously upheld.  But, before I explain why, let’s go back to the start of the story.

The judge in McCorkill invalidated a testamentary gift to a neo Nazi organization on the grounds that it violated public policy. The language of the testamentary document did not reveal the nature of the organization.  Nor did the text of the testamentary document espouse any racist goals. A great deal of evidence was presented to demonstrate the nature of the organization.

In the trial decision, Justice Grant heard evidence from intervenors including the Attorney General of the Province of New Brunswick, the Centre for Israel and Jewish Affairs (“CIJA”), and the League for Human Rights of B’nai Brith Canada (“BB”). They testified as to the status of the National Alliance as a racist entity whose purpose, Justice Grant determined, “is to promote white supremacy through the dissemination of propaganda which incites hatred of various identifiable groups which they deem to be non-white and therefore unworthy.”² Justice Grant continued that “[t]hose purposes and the means they advocate to achieve them are criminal in Canada and that is what makes this bequest repugnant.”²

Justice Grant ultimately determined that on the grounds of public policy, the bequest made by the deceased McCorkill could not stand. Since the beneficiary’s foundational purpose is contrary to Canadian public policy, Canadian courts could not, as a government institution, probate a will that has, as the sole beneficiary, an organization such as the National Alliance.

As a result of Justice Grant’s judgment, the will was set aside. This resulted in an intestacy that benefited the applicant, Isabella McCorkill, the deceased’s sister.

Setting a testamentary gift aside on the grounds that it contravenes public policy is nothing new.  However, the novelty in McCorkill was, in part, that the contravention of public policy was based on the character of the beneficiary.  In this case the beneficiary was a white-power organization based out of West Virginia. Justice Grant determined that the organization’s foundational purpose breached public policy, and therefore the bequest to that organization was in breach of public policy.

As Professors Ziff pointed out in his article, “Welcome the Newest Unworthy Heir”⁴ the decision was precedent setting.

“The ruling in McCorkill is precedent-setting in two related ways. First, while the application of the doctrine of public policy is a longstanding basis on which to invalidate property dealings, in all previous cases in Canadian law the doctrine had been applied to some offensive stipulation or condition in the granting document. Here the gift was absolute; there were no strings attached. The donee was not obligated by virtue of the transfer to use the bequest in any particular way.

Second, invalidity was premised on the character of the recipient. Prior to this case, only two kinds of “unworthy heirs” have been recognized by the law. One concerns the donee who culpably kills the donor, with the result that the inheritance is triggered. Such a beneficiary will be disentitled by that action, as will a joint tenant who assumes title by virtue of survivorship after killing another joint owner…”

There were those who doubted that the New Brunswick Court of Queen’s Bench trial decision in McCorkill,  was good law.  Did the decision unduly usurp testamentary freedom?  Did the court step outside the lines by looking to evidence outside the will?  As explained by Professor Ziff the ruling, in his view, raised two additional concerns.  Firstly, is the decision so open ended that it has no general application?  Secondly, what type of discrimination would be permitted?  For example – would a similar inter vivos transfer of this sort be permitted?  There was hope that the court of appeal would shed some light on these questions.

The Appeal

The Appeal was initiated by a fourth intervenor in the trial proceedings, the Canadian Association for Free Expression (“CAFE”)⁵, and was heard on June 18, 2015. The appeal decision was released on July 30, 2015. The decision dismissed the appeal, with costs ordered to be paid by CAFE to each of the respondents, being Isabella McCorkill, CIJA, and the Attorney General of the Province of New Brunswick.

In a succinct 2-paragraph judgment, the Court of Appeal upheld Justice Grant’s trial decision, stating that “we can find no justification to interfere. We are in substantial agreement with the essential features of the carefully considered reasons of the application judge.”⁶

The appeal decision upholds the proposition that the character of the beneficiary may be considered in making a public policy argument to defeat the provisions of a will. However, the McCorkill decision is a fairly straightforward case, with a blatantly racist criminal organization receiving a particular bequest. The trial decision asks the question, but does not exactly answer, what would happen if a bequest were made to, for example, a racist individual (as opposed to an organization). What if the recipient was a convicted criminal or supporter of a terrorist organization?  Something to also consider, to echo other summaries on the same case, is that other Canadian courts are not necessarily required to follow the decision based on the legal principle of stare decisis ⁷ since it comes from the Courts of New Brunswick. However, as has been pointed out, courts could choose to follow the decision since it is based on federal laws, such as the Criminal Code of Canada, the Charter, and various international conventions to which Canada is a party.

The public policy issue with respect to estates litigation is one that continues to be debated. This debate will likely be invigorated by the pending appeal in the Spence matter, scheduled to be heard in the middle of September 2015, and may elve deeply into the issues regarding invalidating testamentary wishes on the grounds of public policy, and whether extrinsic evidence to ascertain the character of a testator, a beneficiary, or the reason for a bequest is admissible. As such, this area of law, except for in the clearest of circumstances, remains in flux until the Spence decision hopefully sheds additional light.

If you are interested in this topic you may find the following blogs of interest:

• Articles and Posts about Public Policy
• When Do Will Provisions Contravene Public Policy?
• C. Wagner and A. Hummel, “Spence v. BMO Trust Co. – Should the decision be overturned at the Court of Appeal?“, 9-ETR-CAN-ART 34 Estates and Trusts Reports, 2015.