What Can Void Gifts in a Will?

Many people assume they can gift from their estate in their will in any way they please. This isn’t always the case. Sometimes, the courts can rule a gift is void and modify a will. The first exception is for unfairly disinheriting a child or spouse. A will-writer must make adequate provisions for the support of their spouse and children. If they don’t, the courts can modify the will if there aren’t valid reasons for disinheriting.

Another exception is when a gift benefits an illegal activity or organization, or is contrary to public policy. It can be difficult to understand exactly what public policy is and what it means to go against it. A case in New Brunswick helps to clarify when courts will void gifts on these grounds.

A Gift Against Public Policy

In the case of McCorkill v. Streed (2014), the will-writer named the entirety of his estate to a white supremacist, Neo-Nazi organization in the US. The will-writer’s sister challenged the will, claiming it was against public policy. She sought to have the gift (approximately $250,000 CAD) to this organization ruled void.

The courts went through a thorough investigation of the organization’s visions, goals, history, and affiliations. Even though this organization was based in the US, the courts needed to be certain that it didn’t violate the Criminal Code. In determining the usage of the term “public policy”, the courts quoted a past case in stating that:

“The term ‘public policy’ cannot be comprehensively defined in specific terms but the phrase ‘against public policy’ has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society.  Acts are said to be against public policy ‘when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality’.”

Understanding the Law

Basically, actions which are injurious to the interests of Canadian citizens is against public policy. Upon analysis, it was clear that the organization practiced activities clearly contrary to public policy by printing hate-inspired, racist propaganda. Per section 319 of the Criminal Code of Canada, promoting hatred against an identifiable group is a criminal offence. The case identified if an estate gift to an organization whose purpose was against public policy is against public policy. In this case, the will-writer had not specified to use the funds for activity that was against public policy.

The courts decided that it was clear the organization’s sole purpose was contrary to public policy. The only way this gift could be allowed was if the organization demonstrated that the organization had changed since creating their foundational documents. It was made clear that the will-writer “stood for” the actions and ideologies of the organization. His gift was and clearly intended to promote these actions. The will-writer was ruled to have died intestate as this gift was void.

What Does This Mean for Future Void Gifts?

The Supreme Court of Canada later rejected an application for appeal of this case. This makes it clear that people can’t name hate organizations as beneficiaries of their wills in Canada. Essentially, giving estate assets to an organization that practices acts of hatred contradict public policy in Canada.

A common response to this case is, why? People are often confused as to why the law restricts people from disposing of their estate as they see fit. Ultimately, it’s your estate and you should be able to do whatever you wish with it, right? The reason is because Canada’s Criminal Code has the purpose of minimizing crime in Canada. Giving funds to hate organizations, such as the one in McCorkill, promotes their operations and keeps the organization alive.

If you’re an executor of a will with gifts you believe are contrary to public policy, contact an estate lawyer. We can help to identify whether the gift should be void and possibly begin the challenge process with you.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.