The McCorkill Legacy: Can Bequests be Overturned for Ideological Reasons?
by Paul Fromm
Canadian Association for Free Expression
CAN YOU BEQUEATH your money to whomever you like? Until last May, that might have seemed a silly question.
However, the enemies of free speech are nothing if not determined and we are living, it seems, in Absurdistan. Last May, the Southern Poverty Law Center, a well-funded rabidly anti-free speech group in the U.S., learned that a retired New Brunswick Professor Robert McCorkill had left his estate to the U.S.-based National Alliance. The SPLC raised the usual howls about “neo-Nazis” and “White supremacists”.
Richard Warman, a pal of the SPLC, fumed that such a bequest was contrary to “public policy.” Although the will had been probated, a long estranged sister emerged and obtained an injunction until an application to overturn the will could be heard. Almost overnight, three more parties piled into the fray to try to hijack the will – the Centre for Israel and Jewish Affairs (successor to the Canadian Jewish Congress), the League for Human Rights of B’nai Brith, and the Attorney General of New Brunswick. All sang the same tune: the NA was “racist”; Canada’s public policy is against “racism” (well, except for its 110% support of Israel as a Jewish state) and, therefore, the NA shouldn’t receive the bequest.
The estate’s lawyer, John Hughes of Moncton, who once worked with the late Doug Christie, felt overwhelmed. The right of a person to support the causes he deems fit in his will would seem to be sacrosanct, CAFE felt. First, we had to find an attorney in New Brunswick. We were fortunate to find a young, aggressive litigator, Andy Lodge of St. John.
CAFE was granted intervener status. CAFE filed a motion to strike large sections of the affidavits of the other parties. Many of these affidavits contained rants and opinion, rather than FACTS. The judge ruled in our favour for many of the passages cited.
On June 15, Judge William T. Grant of the Court of Queen’s Bench fired a double-barrelled blast into the guts of freedom of belief, freedom of speech and the right of a man to bequeath his property to a group supportive of his beliefs.
With the swipe of a pen, he overturned a bequest to the White nationalist National Alliance in the will of the late professor of chemistry Robert McCorkill, who died in St. John in 2004. After the will had been probated in May, 2013, the anti-free speech Southern Poverty Law Centre objected and insisted the will should be voided as contrary to the public interest. The SPLC had no standing in Canada, but a long-estranged sister Isabelle McCorkell, although claiming poverty, found a pricey Moncton law firm that made an application on her behalf to nullify the bequest, variously estimated as between $250,000 and $1-million. She was joined by the Attorney General of New Brunswick, the Centre for Israel and Jewish Studies (CIJA), and the League for Human Rights of B’nai Brith as interveners.
The application was heard in St. John in late January.
His judgement puts in peril any bequest to a group or maybe even a person whose views are deemed to be “contrary to public policy.”
Judge Grant found: “The purposes of the National Alliance and the activities and communication which it undertakes to promote its purposes are both illegal in Canada and New Brunswick. Consequently, I declare the residual bequest to it in the will of Harry McCorkill to be void.”
Judge Grant noted: “The respondent also submits that the writings of the NA were not in violation of any laws of the United States when they were published. However, they clearly violate the Criminal Code of Canada and this Court takes judicial notice of the fact that in this age of the Internet national boundaries are meaningless for the purposes of spreading hate propaganda such as that disseminated by the NA.”
The ruling is breathtaking in its finding of guilt (of illegality and “hate propaganda”) where no charges have ever been laid. The National Alliance operated in Canada for about a year in the early 2000s. It distributed literature and held small meetings. Yet, it was never charged much less convicted under Canada’s notorious “hate law” or any other law.
Has a New Brunswick court taken us into Alice and Wonderland and the Court of the Red Queen: The verdict is “guilty”; no need for a trial; now on to the sentence!
The judge rejected arguments by CAFE’s lawyer Andy Lodge that overturning the McCorkill bequest would lead to a flood of other such challenges to bequests to any group whose views might seem to be opposed to present government policy: “I, therefore, find that 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 beneficiary’s raison d’etre is contrary to public policy, it is the appropriate remedy.”
Despite the breezy assurance that voiding the will is only meant to get bad people — the judge found the National Alliance’s publications to be “racist, White supremacist and hate inspired, … disgusting, repugnant and revolting”. One wonders, Canada has abortion on the demand. That’s public policy. Right to Life groups exist to enact laws to control or limit abortion. That’s contrary to public policy. Would a bequest to them be voided? On a larger level, today’s Green, NDP and Liberal Parties, to say nothing of the separatist Bloc Quebecois, advocate positions clearly contrary to many of the ruling government’s public policies. Could bequests to them be ruled similarly illegal?
Indeed, isn’t any political dissent over laws or legislation an expression “contrary to public policy?”
The ruling will significantly diminish the assets of the bequest. Most of the lawyers, however, will do handsomely: “Ms. McCorkell is entitled to her costs on a solicitor and client basis from the Estate [and she will get whatever is left of the bequest.] Mr. Streed [the executor] is also entitled to his costs on a solicitor and client basis from the Estate. The Province has not requested costs and CAFE was not successful in its intervention. While the submissions of CIJA and B’nai Brith have both been helpful, their own purposes were also served by intervening. So, I will award them each a lump sum of $3,000 including disbursements to be paid out of the Estate.”
This judgment MUST be appealed. Both the Estate and CAFE filed Notice of Appeal in July. This will cost us at least $30,000 and, not to be too coy about it, we need this money now! We must win this case or the right to bequeath your property to whom you will may have to pass the litmus test of political correctness. Because of the malignant role of the SPLC in orchestrating this assault on property rights and freedom of belief, this case could have major implications both in Canada and the U.S.A.
Will you help?
* * *
The Canadian Association for Free Expression, founded in 1983, is Canada’s leading free speech advocacy group and has intervened on behalf of victims of censorship from coast to coast.
Make donations to CAFE, P.O. Box 332, Rexdale, ON., M9W 5L3, CANADA. [Checks, VISA or Mastercard accepted.]
Click on this link to donate online: https://www.indiegogo.com/projects/mccorkill-will-free-speech-property-rights-ap/x/10233466