In an intriguing case from New Brunswick the Court held that a bequest in Robert McCorkill’s will to an American Neo-Nazi group would be declared void as against public policy because of the racist views of the organization, a decision endorsed by the Supreme Court of Canada, as evidenced by their refusal to grant leave to appeal.
(Canadian Association for Free Expression v. Fred Gene Streed, Executor of the Estate of Harry Robert McCorkill (a.k.a. McCorkell), deceased, et al., 2016 CanLII 34017 SCC)
National Alliance, a white supremacy group in West Virginia, was gifted a collection of valuable coins from ancient Rome and Greece, an antique Iranian sword, and other artifacts and investments said to be worth a minimum of $250,000 and as much as $1 million dollars.
Robert McCorkill, who died in 2004 in New Brunswick, lived primarily in Saskatchewan and Ontario during his lifetime. He was a geologist and a professor at Carleton University in Ottawa, who had spent time at National Alliance’s headquarters.
The challenge to his Will was brought by his sister, Isabelle McCorkill, who maintained that it was not about the money but a reflection of her moral duty to intervene in what she described as an offensive and illegal bequest.
The Attorney-General of New Brunswick agreed with her, as did B’nai B’rith and the Centre for Israel and Jewish Affairs who were granted intervener status and made submissions at the hearing.
In their arguments against upholding the will, the interveners argued that the National Alliance’s profile had declined with the death of its founder ten years before, and that the bequest would provide funds to the organization to resurrect itself and its mandate to deny the Holocaust, and promote racial cleansing and genocide.
However, the Canadian Association for Free Expression (CAFE) argued that the will should stand as representing Mr. McCorkill’s testamentary wishes which were paramount and should not be subject to court intervention simply because the intended beneficiary espouses a message that is unpopular or even contrary to the Criminal Code or the Charter of Rights and Freedoms.
CAFE also argued that it was not up to a judge to determine the worthiness of a beneficiary and to do so would open a Pandora’s box, illustrating their point by querying whether a bequest to the Hell’s Angels or to a drug dealer or even to Greenpeace could be subject to attack.
They also noted that the National Alliance is a lawful corporation in good standing and had no criminal convictions either in Canada or the United States.
Their entreaties were rejected by the trial court, the Court of Appeal, and the Supreme Court of Canada. While testamentary freedom is sancrosanct, the intended beneficiary was determined to be so vile as to be contrary to Canada’s public policy. Clearly, racists views trump testamentary freedom in Canada.