While I have previously addressed the legality of disinheriting intermarried children in both in the Tribune (http://bit.ly/9ADVJY ) and in the Ontario Lawyer’s Weekly a recent case suggests another review is warranted. In Re Estate of Max Feinberg three Illinois courts reviewed what they called the Jewish Clause which stated:
A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.
The court weighed testamentary freedom against the common law’s disdain for wills that restrain people from entering into an otherwise legal marriage. The Illinois’ court of first instance and appellate court ruled that the Jewish Clause was invalid because it seriously interfered with the right of individuals to marry a person of their own choosing. It was now up to the Supreme Court of Illinois.
The Illinois Supreme Court held that the Jewish Clause was valid. The test was whether the provision was capable of producing harm that its enforcement would be contrary to the public interest. The Illinois Supreme Court upheld the Jewish Clause because they placed a premium on the right of individuals to decide what happens to their assets after they die. They disagreed with the lower courts who suggested that the clause in question was a restraint of marriage.
What is the position of other jurisdictions? As Illinois’ Justice Greman, pointed out, “… In most states they allow this – not just with Jews but for Catholics and others.” So what about Ontario? The Ontario Court of Appeal, in a non-binding aside (obiter), addressed this issue in the Fox Estate case. Fox’s will gave the executor absolute discretion to use trust money for his grandchildren. The executor removed all the money to disinherit her son because he married a non Jew. At issue was whether the executor’s conduct was proper. The judge commented, “….in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith”.
Given the treatment of this issue in the US, does that mean a Jewish Clause would be void in Ontario? Maybe – Maybe not. The fact that three Illinois courts came to different conclusions should tell you that this issue is complicated and this review should not be taken as legal advice. I receive calls about this and other similar issues all the time. Cases often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.