McCorkill v. McCorkill Estate, 2015 NBCA 50

• Judge: Deschênes, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: July 30, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 50;(2015), 438 N.B.R.(2d) 395 (CA)

McCorkill v. McCorkill Estate (2015), 438 N.B.R.(2d) 395 (CA);

    438 R.N.-B.(2e) 395; 1141 A.P.R. 395

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. AU.003

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AU.003

Canadian Association for Free Expression (intervenor/appellant) v. Fred Gene Streed, Executor of the Estate of Harry Robert McCorkill (a.k.a. McCorkell), deceased (respondent), Isabelle Rose McCorkill (applicant), Centre for Israel and Jewish Affairs (intervenor), and the Province of New Brunswick, as represented by the Attorney General (intervenor/respondents)

(81-14-CA; 2015 NBCA 50)

Indexed As: McCorkill v. McCorkill Estate

Répertorié: McCorkill v. McCorkill Estate

New Brunswick Court of Appeal

Deschênes, Quigg and Green, JJ.A.

June 18, 2015.

Summary:

Résumé:

McCorkill died in 2004. His will left the residue of his estate to an American Neo-Nazi organization (National Alliance). McCorkill's sister brought an application contesting the bequest on the ground that it was illegal and/or contrary to public policy. The sister moved for an ex parte interim injunction to restrain the estate executor from paying, transferring or disbursing any part of the estate until further order of the court. The sister alleged that an ex parte interim injunction was necessary because there was a real and substantial risk of estate assets being removed from the jurisdiction if the executor were given notice.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2013), 407 N.B.R.(2d) 318; 1056 A.P.R. 318, granted the ex parte interim injunction sought. The sister established a serious triable issue as to whether the bequest was illegal or contrary to public policy, that she, as a potential beneficiary under the Devolution of Estates Act, would suffer irreparable harm if the assets were removed from the jurisdiction, and that the balance of convenience favoured granting injunctive relief. The sister filed two affidavits in support of her application and motion. On a subsequent hearing respecting whether to continue the interim injunction, the executor moved to cross-examine the sister on those affidavits. That motion was dismissed. The executor brought a second motion to cross-examine the sister on her affidavits. The sister opposed the motion on the basis that the request was res judicata.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2013), 415 N.B.R.(2d) 32; 1076 A.P.R. 32, dismissed the motion. The issue and the parties were the same. The prior decision was final where the executor failed to establish a sufficient change in circumstances warranting the court's reconsideration of the same procedural motion. In any event, there was no evidentiary foundation laid to challenge the two affidavits. Although declining to order solicitor and client costs personally against the executor, the court awarded $3,000 party and party costs against the executor personally. The executor applied for leave to appeal the interlocutory ruling.

The New Brunswick Court of Appeal, per Robertson, J.A., in a judgment reported (2014), 416 N.B.R.(2d) 386; 1079 A.P.R. 386, denied leave to appeal the interlocutory ruling where there was no merit to the application.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2014), 424 N.B.R.(2d) 21; 1104 A.P.R. 21, declared the residual bequest void on the grounds that the purposes of the National Alliance and its activities and communications were illegal in Canada and contrary to the public policy of both Canada and New Brunswick. Accordingly, there was an intestacy respecting the residue to the estate to be divided between the next of kin in accordance with the Devolution of Estates Act. The intervenor appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Wills - Topic 4007

Failure of gifts - General - Public policy (incl. illegality) - A testator's will left the residue of his estate to an American Neo-Nazi organization (National Alliance), a white supremacist group whose goal was racial purity - The trial judge voided the residuary bequest where the National Alliance's activities aimed at racial purity were both illegal and contrary to public policy - The National Alliance clearly promoted hatred against identifiable racial groups contrary to s. 319(2) of the Criminal Code - Illegal activity was contrary to public policy - The National Alliance's various communications and activities violated the values of the Charter, provincial human rights legislation and International Conventions to which Canada was a signatory, all of which promoted equality and dignity of the person while prohibiting discrimination based on various grounds, including race and ethnic origin - The trial judge rejected the submission that since the bequest was to a beneficiary whose activities were contrary to public policy, as opposed to a bequest made for a specific purpose contrary to public policy, the bequest should not be voided - While the cases on voiding bequests on the grounds of public policy tended to deal with conditions attached to specific bequests, this case was indistinguishable from those cases - "Those purposes and the means they advocate to achieve them are criminal in Canada and that is what makes the bequest repugnant" - It was clear that the testator intended the bequest to be used for the National Alliance's clearly stated, illegal purposes - The trial judge stated that "while the voiding of a bequest based on the character of the beneficiary is, and will continue to be, an unusual remedy, where, as here, the beneficary's raison d'être is contrary to public policy, it is the appropriate remedy" - The New Brunswick Court of Appeal affirmed the decision, stating that "We are in substantial agreement with the essential features of the carefully considered reasons of the application judge".

Counsel:

Avocats:

Andy Wayne Lodge and Jean-Yves Bernard, for the appellant;

John D. Hughes, for the respondent, Fred Gene Streed, Executor of the Estate of Harry Robert McCorkill (a.k.a. McCorkell) (deceased);

Marc-Antoine Chiasson, for the respondent, Isabelle Rose McCorkill;

Danys Delaquis and Lauren A. Cicin, for the respondent, Centre for Israel and Jewish Affairs;

Richard A. Williams, for the respondent, Province of New Brunswick, as represented by the Attorney General.

This appeal was heard on June 18, 2015, before Deschênes, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal.

On July 30, 2015, the following decision was delivered in both official languages by the Court.