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Advising The Orthodox Jewish Litigant

The purpose of this paper is to provide litigation lawyers and other interested parties with insight into the specific needs of Orthodox Jewish clients. It is important in developing a litigation strategy for those clients to understand how some of the tenets of their faith impact on the litigation of disputes and the financial and personal risk that the clients may be placed in as a result.
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Entitlement to Support Despite Prenuptial Agreement

When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, the marriage breaks up and/or the wealthy spouse dies. So, if the couple each hire good lawyers and the prenuptial contract clearly spells out their agreement, is that ‘pre-nup’ still open to challenge? Maybe. Let’s look at the law.
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Challenging the Wills of the Living

The traditional rule in Ontario is that one cannot challenge a will while the testator is still alive. However, in recent years, there have been some cases in which judges have expressed a willingness to adjudicate upon the validity of a will prior to the testator’s death. These cases might be mere anomalies or they might be signs that the general rule is weakening.
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Are Prenuptial Agreements Invalid Without Independent Advice?

Suppose a couple sign an agreement not to sue each other’s estate and one spouse did not get legal advice before signing the agreement. Would a judge hold that spouse to the agreement? In 2003, Justice Desotti, an Ontario Superior Court judge, said, “While I cannot conclude that there will be no agreement involving an unrepresented party that is not declared to be valid, I am certain that it will be the exception and not the rule.” Based on this decision it seems as if, as a general rule, when one of the spouses did not have a lawyer the agreement will be set aside. It’s 11 years later – let’s see how the law has evolved.
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Setting aside unconscionable prenuptial agreements

Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable” and should be set aside. The case was heard in Montana.
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Entitlement to support despite prenuptial agreement

When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, G-d forbid, the marriage breaks up and/or when the wealthy spouse dies. So if the couple each hire good lawyers and the prenuptial agreement clearly spells out their agreement is that contract still open to challenge? Maybe. There is some question whether a surviving spouse can still sue for support even when she signed a valid prenuptial agreement. Let’s look at the law.
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Rights of disinherited second wife – full and frank disclosure

People who sign domestic contracts should know that failure to make full and frank disclosure of all relevant financial information opens the door for the contract to be set aside.

In the LeVan case, Richard’s family’s business was worth $30 million. Before his marriage to Erika, Richard’s family insisted that they enter into a marriage contract. The contract excluded Richard’s business interests and severely restricted Erika’s rights to support upon end of marriage or upon Richard’s death. The court set aside the contract and the LeVan case became the seminal case for the proposition that full and frank disclosure should be a foundation stone of every domestic contract.

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Who will have custody of your children?

Is it up to you who will have custody of your children after your death? Not necessarily. In a lecture about Halachic Wills, Rabbi Moshe Taub spoke about a young Catholic woman who converted to Judaism. She did not have a will, so no one was appointed as guardian of her child. While it was natural that the maternal grandparents applied for custody, the prospect of this child being raised as a Catholic was the antithesis of what the mother wanted. What ensued was a battle to keep that Jewish child within the fold. How might this have been avoided?
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Does a Heter Iska increase risk of litigation?

So I pose the question – is there a litigation risk to a lender who signs a Heter Iska? When a religious Jew lends another Jew money they often enter into an agreement called a Heter Iska. Faced with the biblical prohibition against charging interest on loans and the reality that lenders are more likely to lend people money when interest can be charged, the rabbis created a halachic mechanism to still allow a lender to profit from the loan and not charge interest. This halachic document is called the Heter Iska. The Heter Iska characterizes the lender as an investor who provides capital for a business venture.
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