Court ruling limits right to name beneficiaries

Ruling has cultural and political implications

ROTHESAY, NB, Jun 10, 2014/ Troy Media/ – It is a common belief that an individual has the right to dispose of his or her assets to whomsoever in a legally constructed will. A recent court decision in the Canadian Province of New Brunswick has defined the limits to such estate dispersals in a way that has both cultural and political implications.

The story begins in February 2004 with the death of one Harry Robert McCorkill in Saint John, New Brunswick. The well-travelled McCorkill was not known to anyone in the city, had lived there only briefly, and was a previous resident of Ottawa, Ontario and Saskatoon, Saskatchewan. In his will he left his entire estate to an American organization and this was challenged by his estranged sister. The matter reached the New Brunswick Court of Queen’s Bench in January 2014 and the final ruling was handed down by Judge William Grant on June 5, 2014.

The issue before the courts was the nature of the estate’s beneficiary. The late Mr. McCorkill left a proper will and there is no assertion he was of unsound mind when he wrote it. He did, however, leave everything to an outfit called the National Alliance [NA], based in West Virginia. His estate was valued at an estimated C$250,000 and consisted, in part, of his collection of ancient Greek and Roman coins along with various other antiquities, including an Iranian sword. His collection was once on display at the University of Saskatchewan’s Museum of Antiquities in the late 1990s.

Those opposed to the McCorkill bequest charged that the National Alliance was, among other things, a racist organization whose activities were both illegal and contrary to public policy. There is some precedent case law in Canada for voiding a will on these grounds. So the matter before the court was to determine whether the will could stand up to this challenge.

Parties contesting the will included McCorkill’s sister, the Attorney General of the Province of New Brunswick and a couple of Jewish organizations concerned with issues of anti-Semitism. Those defending the will included the executor, a representative of the National Alliance and a group called The Canadian Association for Free Expression.

Both sides presented evidence as to the nature of the National Alliance, mostly from its manifestos and foundation documents. Various statements were presented illustrating the NA’s anti-Semitic, anti-Black, anti-immigration, anti-feminist, anti-jazz and homophobic positions, along with its proposals to use violence to achieve exclusive whites-only areas.

The will’s defenders, including its executor and a spokesperson for the NA, responded that the will was legally proper, the NA did not advocate breaking the law and was a legal organization in the U.S., and so on.

Grant, in his 44 page decision, found in favour of the parties challenging the will and the NA’s literature to be “disgusting, repugnant and revolting”. His ruling followed along two lines, criminality and actions contrary to public policy. There was, he found, a violation of the Canadian Criminal Code, section 319(2), prohibiting the public promotion of “hatred against any identifiable group”. The evidence presented in court convinced him that the purpose of the NA “is to promote white supremacy through the dissemination of propaganda which incites hatred of identifiable groups” and “the means they advocate to achieve them are criminal in Canada”.

He also found the will to contravene Canadian public policy referencing The Canadian Charter of Rights and Freedoms, the New Brunswick Human Rights Act and various international human rights agreements to which Canada was a signatory. His conclusion was the “beneficiary’s (NA’s) ‘raison d’etre’ is contrary to public policy”.

In his decision, Grant declared the will of Robert McCorkill void and his estate intestate, that is, awarded to nearest of kin by government regulation. He further awarded some court costs to the complainant, his sister, and the will’s executor along with the two Jewish organization’s interveners, all to be paid from the estate.

What are we to make of this decision? While judge’s decisions can be overturned on appeal, as it now stands this ruling may have far-reaching implications. It means a person cannot make bequests to organizations that are criminal as defined under Canadian law or opposed to generally-accepted public policy as set out, for example, in a country’s charter of human rights.

If you think you can will your collection of original Canadian art, ancient coins or hockey memorabilia to whomsoever you please, you might want to look at the judge’s ruling in the McCorkill case.

Troy Media Columnist Fred Donnelly’s career in journalism covers more than two decades. He writes on popular culture. You can follow Fred on Twitter @FredDonnelly2.

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