Thank you Lionel. There is an indeed an appeal to that reasoning, though it rests on an assumption that corporations hold property for the stated purposes of the corporation. That needs to be reconciled with the principle - common to many jurisdictions - that corporations have the capacity of natural persons. I confess that I have not looked at the state of Virginia corporate law on point. Assuming that principle applies in Virginia, which was not considered in McCorkill, the idea developed by the Court that a bequest to a corporation is readily distinguishable from a bequest to an individual becomes more difficult to sustain.
Even in the charitable context, the most apt analogy is not to a contribution to a charitable trust, which very clearly becomes subject to the purposes of the trust, but rather a contribution to a charitable corporation. I am not aware of any authority having definitively established that a charitable corporation necessarily holds all donations in trust for its purposes as they existed at the time of the donation.
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Thanks for this Adam. Very interesting indeed.Surely one could argue that it is not like an unrestricted bequest to an individual, since presumably the foreign corporation has a constitution that requires it to pursue certain goals and/or activities. This point is made by the judge at [73]ff. In the same way, an 'unrestricted' bequest to a charity that was organized in the form of a trust would not be an unrestricted bequest, but effectively an accretion to the existing trust and thus an adoption by the testator of the terms of that charitable trust. (Of course, a corporation can change its constitution, but then again any trust can in principle be varied (in most jurisdictions)).So this testator wanted to make a gift to a corporation but the corporation would not, I presume, be recognized as a legal person under Canadian law, because its constitution (or activities, or both) were unlawful under our laws. In that perspective the decision is not so surprising.LionelFrom: Adam Parachin <aparachi@uwo.ca>
Date: Thursday, 31 July 2014 at 16:10
To: ODG <obligations@uwo.ca>
Subject: ODG: Unconditional Bequest Struck on the Basis of Public PolicyDear 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--Adam Parachin
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445
Adam Parachin
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445
Associate Professor
Faculty of Law
University of Western Ontario
(519) 661-2111 Ext. 81445