Excluding the Orthodox community, some estimate that 72% of North American Jews intermarry.
As chair of B’nai Brith Canada’s Trusts & Estates Group I oversee the committee that chooses the subject matter and format of the continuing legal educational programs offered every year to the lawyers and accountants of our community. We choose topics that are relevant to the profession and to the Jewish community. This year we are examining whether a clause in a will that disinherits a child for marrying outside the faith is legal.
For the Jewish community in general, and the Israeli community in particular, the issue of continuity is very relevant. If the statistics are correct, 7 out of every 10 non-orthodox Jews may choose a partner that may lead to the elimination of their Jewish identity. In one controversial study done in 1975 there was a prediction that 60 years from now North American Jewry may be reduced by 85-95%.
The program this year addresses the tension between testamentary independence and the Ontario courts’ willingness to vary a will or set aside a provision that offends public policy. The format of the seminar will be a summary trial. The fact situation before the court is an amalgamation of several cases from Ohio, Illinois and Quebec. In each instance, the testator disinherited a child for marrying outside the Jewish faith. At issue is how an Ontario court might
- Balance the right of a testator to determine who is entitled to his bounty weighed against provisions that might offend public policy; and
- The moral duty of a parent to include a child in his inheritance.
While the question of whether a “disinheriting provision” might offend public policy is certainly interesting, of more concern to the estates bar is the argument that the moral duty of a parent to include a child in one’s testamentary planning is legally enforceable. In British Columbia, the courts have varied wills because they consider that the moral duty of a parent to include a child in their will is a legal duty. In some jurisdictions in Europe there are forced heirship laws requiring a certain percentage of every estate to be bequeathed to the testator’s spouse and children. To date, unlike the courts in British Columbia, there is no case in Ontario where a court has revised a will to the benefit of a healthy non-dependant adult child who was disinherited. However, certain cases, like the Court of Appeal decision in Cummings v. Cummings, 2004 CanLII 9339 (Ont. C.A.), suggest that Ontario courts will be taking the moral entitlement of adult children dependants into account when reviewing competing claims.
For a moment let’s step back from the legal analysis and address whether disinheritance is the right thing to do even if such a clause is legal. In my view, if we have to use the threat of disinheritance to coerce our children to marry Jewish then we have lost the battle for continuity. It is an ineffective process. To succeed in the battle for continuity parents and grandparents have to persuade our children that there is a benefit to membership. To that end we should be sending our children to Jewish schools, Jewish camps, and trips to Israel and be supporting organizations that promote our culture and instill in our children pride of our heritage.
The seminar will take the format of a summary trial. The disinherited beneficiary will be filing an affidavit explaining why he is challenging the will. The estate will be filing an expert report trying to prove why the fight for Jewish continuity neither offends public policy nor invites an Ontario court to vary the will. At the seminar, Jordan Atin of Hull and Hull LLP is playing the judge. Representing the estate is Ian Hull of Hull and Hull LLP and Kelly Charlebois of Miller Thomson LLP. Representing the daughter is Craig Vander Zee of Torkin Manes LLP. The disinherited son is represented by Archie Rabinowitz of Fraser Milner Casgrain LLP, Kimberly Whaley of Whaley Estate Litigation and Charles B. Wagner of Wagner Sidlofsky LLP.
As part of the presentation, the estate will be calling in expert witness Rabbi Mordechai Torczyner, Rosh Kollel, YU Kollel in Toronto whose expert report will speak to why a clause promoting Jewish continuity does not offend public policy. He will be cross-examined by Rabinowitz. Howard Black of Minden Gross will be playing the disinherited son. He will be cross-examined by Vander Zee.
The event will take place on June 5, 2012 at Shaarei Shomayim Synagogue, 470 Glencairn Ave., Toronto, ON M5N 1V8. Registration is at 7:30 a.m. and the moot court will begin at 8 a.m. The event is open to lawyers and accountants. Those lawyers and/or accountants interested in attending should contact Anita Bromberg, B’nai Brith Canada, at (416) 633-6224 and/or at abromberg@bnaibrith.ca.
