Estates & Wills & Trusts

Testamentary freedom not a shield for racist behaviour

Toronto trusts and estates litigator Ian Hull says a recent Court of Appeal decision that invalidated a bequest to a white supremacist group is a good reminder that testamentary freedom cannot be used as a shield for discriminatory behaviour.

Hull makes his comments in connection with Canadian Association for Free Expression v. Streed et al, 2015 NBCA 50 (CanLII), a New Brunswick Court of Appeal decision that upheld a lower court decision to invalidate the late Robert McCorkill’s $250,000 bequest to the National Alliance, a U.S.-based Neo-Nazi organization.

“The application judge invalidated a residual bequest to the beneficiary, National Alliance. He made this determination on the basis that the purposes of the National Alliance, and the activities and communications it undertakes to promote its purposes, are illegal and contrary to the public policy of Canada and New Brunswick,” the court wrote.

“Having regard to the application judge’s comprehensive reasons and his determination that the bequest was void as against public policy, 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,” the decision continues.

Hull, co-founding partner of Hull & Hull LLP, says the brief decision of the appeal court is helpful in the sense that it dismissed the appeal and embraced the lower court decision, McCorkill v. McCorkill Estate, 2014 NBQB 148 (CanLII).

“This allows us to look at the more fulsome, lower court decision,” says Hull, who was not involved in the case and makes his comments generally. “At the end of the day, I think this was a fairly dramatic gift once the layers of review were exhausted. The court had to look to the extrinsic evidence as to the nature of the National Alliance, and the court concluded that that information that was being disseminated by the group is hate propaganda.”

That evidence included testimony from intervenors including the Province of New Brunswick, the Centre for Israel and Jewish Affairs, League for Human Rights of B’Nai Brith Canada, and the Canadian Association for Free Expression (CAFE).

Hull notes that while McCorkill’s will wasn’t racist on its face, the court was prepared to take an extra step and look at extrinsic evidence as to the nature of the National Alliance.

“This move supports what I think is a moving trend within the courts. As a public institution they are going to continue to vigilantly and carefully review wills that, either on the face of it or through extrinsic evidence, have overtones of racist and discriminatory behaviour,” he tells AdvocateDaily.com.

Hull says it will be interesting to see how Spence v. BMO Trust Company, 2015 ONSC 615 (CanLII) plays out at the Ontario Court of Appeal next month.

In Spence, Justice Cory Gilmore set aside the will of the deceased who had disinherited one of his daughters while leaving his estate to his other daughter and her two children. The applicant Verolin Spence asserted that the will was void for public policy reasons due to the deceased's racist views and should be set aside resulting in an intestacy.

Spence looked at the racist motivation of the deceased and I think McCorkill is a strong support for that decision to be upheld,” Hull says. “I think both decisions demonstrate that the courts can and should look further within the legal parameters of the case law and look further into the motivations of individuals when it's apparent that racist behaviour is systemic to the motivation.”

For those who think decisions like McCorkill and Spence will open the floodgates to more will challenges, Hull says this is addressed in the lower court decision.

Each case must be dealt with on its own merits and I have little doubt that the expense of litigation will discourage frivolous applications. It is difficult to imagine too many applications that would be based on such a strong factual background as this one. On the contrary, in my view, if the court allowed this bequest to stand it would increase the risk of opening the door to bequests to other criminal organizations,” wrote Justice William T. Grant of the Court of Queen’s Bench.

“Moreover, the jurisprudence concerning cases that are contrary to public policy goes back 200 years in the English common law tradition and more than a century in Canada alone. Despite that long history, it can hardly be said that there has been a deluge of cases where the courts have intervened in an estate or trust or even a contract on the grounds of public policy,” it continues.

Hull says with the system naturally keeping out the deluge of frivolous actions, it’s not a bad thing that the courts are digging deeper to find improper conduct.

“You don't have testamentary freedom to act like a racist,” he says. “That's been around for a long time, and the fact that the courts may arguably be looking harder to find that behaviour is a good thing.”

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