Dear All:

 

A recent decision of the New Brunswick Court of Queen's Bench (McCorkill v Streed 2014 NBQB 148) is attracting some attention here in Canada amongst estates lawyers.  The Court took the unusual step of striking an unconditional residual bequest on the basis of public policy. 

 

The beneficiary of the bequest was the National Alliance, a Virginia corporation with a white supremacist agenda.  Justice Grant assessed the formal validity of the bequest by looking to the purposes to which the National Alliance would apply the bequest.  Finding that the National Alliance engages, albeit in the U.S., in what qualifies as unlawful hate speech under Canadian criminal law, Justice Grant concluded that the bequest was against public policy and thus void.  

 

Justice Grant essentially reasoned that, since the racist purposes to which the National Alliance would presumably apply the bequest could be inferred, and were presumably in the contemplation of the testator, the validity of the bequest could (and should) be assessed from the vantage that the unconditional bequest was in reality an express trust for those racist purposes. 

 

I confess to this being my first experience with this reasoning.  The case equates an unrestricted bequest to a known racist with an overtly racist purpose trust.  It contemplates a judicial discretion to re-characterize facially valid testamentary dispositions into problematic legal forms never intended by testators.  It invites future courts to evaluate not only the express conditions attaching to bequests but also the ways in which beneficiaries are anticipated by testators to use unconditional bequests, or more generally, the deservedness of beneficiaries.

 

I would be much obliged if anyone can point me in the direction of similar cases or relevant scholarly commentary.

 

Regards,

 

Adam

 

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