2 Ways That A Will or Bequest Is Void On Public Policy Grounds
Challenges are launched against Wills on a regular basis for a variety of reasons. One of the rarer grounds to bring a challenge is that the will or bequest is void on public policy grounds.
The first way that a bequest is void on public policy grounds is if the gift attached conditions that are against Canadian public policy. The traditional example, based on case law, is a condition that the recipient marry within a particular faith or race. Other examples would include requiring the recipient to live in a certain place or commit to a certain career path.
Recently, the New Brunswick Court of Appeal affirmed a lower court decision to void a gift to an American neo-Nazi group on the grounds that the group disseminated hate propaganda and incited hatred of certain peoples contrary to Canadian law and public policy. This expansion of the public policy doctrine to include groups that exist for a purpose contrary to Canadian law creates a second way that a testamentary gift could be found void on public policy grounds.
The deceased had never married, had no children and was estranged from his siblings. He left the residue of his estate, valued at approximately $128,500 CDN or $90,000 USD to a Virginia corporation, the National Alliance ("NA"). NA promoted a political program that paralleled WWII Nazis including genocide, ethnic cleansing, eugenics and the use of violence and "blood-letting" to achieve its aims. His estranged sister challenged the gift.
While the communications of NA are protected in America by the First Amendment, in Canada the Criminal Code specifically prohibits hate propaganda. It is a criminal offense to advocate genocide or publicly incite hatred. The Criminal Code provision making such communications an offence are considered a reasonable limit [to freedom of speech], prescribed by law that is demonstrably justifiable in a free and democratic society".
NA focused its defence on discrediting the evidence as "deliberately misleading, containing half-truths and implying guilt by association." It claimed that social mores and values in the U.S. had changed over the decade and documents from its early years were reflective of those different times.
The judge didn't accept it and ruled that the communications were "racist, white supremist and hate-inspired... disgusting repugnant and revolting."
Since the purpose of NA was the dissemination of hatred against certain peoples (non-whites and Jews) the court found that the gift was intended to be used for the criminal purpose of inciting hatred and was, therefore void. Even though the gift did not advocate violence it would lead to violence because NA advocated violence.
The Lesson: a gift given conditionally can be void if the condition is against public policy. Similarly, if a gift is given to an organization that serves a purpose contrary to law or public policy, the gift could also be void.
McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased, 2014 NBQB 146 aff'd NBCA https://www.canlii.org/en/nb/nbqb/doc/2014/2014nbqb148/2014nbqb148.pdf
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