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.
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
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
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 be 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.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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