Testamentary Freedom & The Charter of Rights and Freedoms


Written on October 30, 2014 – 7:37 am | by Angelique Moss

Today’s blog is written by William Lim, a law student at Western University and research assistant to Professor Adam Parachin, associate professor of law at Western University.

As discussed in a recent blog by Professor Adam Parachin, the Court in McCorkill v. Streed 2014 NBQB 148 took the unusual step of striking an unconditional bequest to the National Alliance, a white supremacist organization, on the basis of public policy. The issue in question was whether the court should have declared the bequest invalid given that the activities of the National Alliance were contrary to public policy but not made for any specific purposes.

Justice Grant emphasized that the legatee in McCorkill engaged in illegal hate speech prohibited by s 319(2) of the Criminal Code.  Though the National Alliance operated in the U.S., where its activities are lawful, Justice Grant reasoned that “in this age of the Internet, national boundaries are meaningless for the purposes of spreading hate propaganda such as that disseminated by the National Alliance”.

The decision raises the various concerns identified in Adam Parachin’s blog.  Was there an alternative way the Court could have reasoned to the same conclusion?

Perhaps Justice Grant could have, as others have, framed testamentary freedom as a form of expression.

This might have been a helpful way to explain why the hate speech provisions of the Criminal Code were relevant to the validity of the bequest.  If testamentary freedom is a form of expression, then it is subject to the limits on free expression, including the limits established by the hate speech provisions of the Criminal Code.

The question, then, is whether testamentary freedom can be viewed in this light, i.e., as expressive conduct.  In defining the scope of freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms, the Supreme Court in the landmark decision of Irwin Toy Ltd. v Quebec (Attorney General) held that if an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.  A bequest to the National Alliance could therefore qualify as expressive conduct if we interpret the bequest as trying to “send a message”.

There are certain dangers with treating a bequest as a form of expression.  Doing so would, for example, subject testamentary freedom to all limitations on lawful expression.  Further, it implies that Charter values somehow inform traditional property rights.  Nevertheless, framing testamentary bequests as a form of expression might have supplied the court in McCorkill with a more disciplined and focused basis for striking the bequest to the National Alliance.

Thanks for reading,

William Lim

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    Valuations for estate planning arrangements and tax disputes.


    Written on October 29, 2014 – 7:00 am | by Steven Frye

    I was at a conference for professional valuators and appraisers from around North America. There was a session devoted to the do’s and don’ts when dealing with the tax authorities on disputes with valuations, presented by two gentlemen with considerable experience with tax disputes on both sides of the border.

    I was interested in hearing that while estate and gift tax returns have a high audit focus in the USA by the Internal Revenue Service (“IRS”) , so be especially careful if you are settling an estate in the US, there does not appear to be a particular audit focus on returns filed with the Canada Revenue Agency (“CRA”) related to estate planning arrangements. Nevertheless, the risk of a CRA audit is ever present.

    I have been writing about valuations for estate plan agreements, highlighting that they should be based on fair and reasonable methods, prepared in good faith, properly supported and documented at the time of valuation.

    At the conference, both presenters concurred that in any dispute with the tax authority, related to valuations in particular, make sure you present all the facts and assumptions used to support the valuation, don’t be afraid to educate the auditor on your position if needed. The emphasis should be on exchange of information and discussion in a reasonable fashion. In this regard you will provided ample opportunity to discuss, negotiate and reconsider if necessary. Notably, both referred to maintaining a positive relationship as key to a satisfactory settlement. By the way, avoid complaining, no matter how frustrating you might find the process. It really doesn’t help.

    Also keep in mind that in Canada as opposed to the USA, the CRA can only resolve its position on a “principles” basis, and “splitting it down the middle” is not one of them.

    If all else fails and you find yourself going to Appeals as a result of an unfavorable assessment, or even to Court, you can take some comfort that you will be well prepared.

    Thanks for reading

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      LEAVING QUEBEC? DON’T FORGET TO PACK YOUR NOTARIAL WILL


      Written on October 28, 2014 – 8:00 am | by Corina Weigl

      The recent case of Morton v. Christian is a reminder to Quebec residents – if you execute a notarial Will, you need to appreciate the manner in which the notarial Will can be revoked.

      Notarial Wills stem from the Quebec Civil Code. They are executed before a notary, who then registers the original with the provincial registry and stores the original as an officer of the court. The benefit of this process is that probate is not needed. The downside is that it cannot be revoked by the testator or testatrix by simply destroying a copy of the document, even where there is clear evidence that the copy was in fact destroyed by the testator or testatrix thereby signifying an intention that the destroyed Will should not operate.

      Notarial Wills can only be revoked by the creation of a new Will, or by the signing of a testamentary document that is inconsistent with the original Will. Destroying a copy you have is not enough. So if you have executed a notarial Will in Quebec and plan on leaving the province, don’t forget to review your Will to make sure it reflects your intention and will operate effectively in your new home jurisdiction. Otherwise your estate may end up with unintended beneficiaries – like John Christian’s estate.

      John Christian was married to Lorraine Morton in 1991 when he made a notarial Will naming her as the sole beneficiary. They then moved to BC and separated in 2009. John died in 2011. His family argued that he had destroyed the copy of the notarial Will he had in his possession. Lynne disputed this. She relied upon the Civil Code provisions applicable to how notarial Wills can be revoked. Even with proof of destruction of a copy by John, this would not have changed the outcome. John’s family was without recourse – Lynne took John’s estate pursuant to the 1991 notarial Will.

      A reminder to practitioners and clients alike – if you’ve moved from Quebec, get a new Will in place that will revoke the notarial Will and so advise the former notary.

      Cheers.
      Corina

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