Public Policy

In Canada, the law balances the idea of testamentary independence against public policy concerns. While cherishing testamentary freedom, the law intervenes when it finds provisions in a will offensive to public policy and or equity. Other public policy issues addressed include the court’s treatment of end of life issues.

Is disinheriting your child for marrying outside the faith contrary to public policy?

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.
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Disinheriting children who marry outside the faith

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 descendents shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage."
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When Do Will Provisions Contravene Public Policy?

Would a disposition of property be void for contravening public policy if the precondition was a requirement that the proposed spouse be a certain religious faith? Generally, Ontario courts respect the rights of testators to dispose of their assets as they see fit. This fundamental principle is demonstrated in Renaud v. Lamothe, [1902] C.C.S. 145. The court held that the testator had absolute power to deal with his property, regardless of any moral or natural claims on him. Under certain circumstances, the legislature provides for the disinherited to challenge a testamentary disposition.
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The Right To Choose

In his Will, Ben appointed his non-Jewish girl friend to be his executrix and expressed a desire to be cremated. When Ben died, his mother tried to block the cremation because according to Jewish law, it was a desecration of the dead and a denial of the fundamental belief in the after life. The lawyers alleged Suspicious Circumstances and Undue Influence in the drafting of the Will, but the Judge dismissed those arguments and focused on who had the right to choose on how to dispose of the remains.
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Will Your Child Marry A Jew?

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.
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End Of Life Decisions – Do Doctors Have The Right To Decide?

The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment. The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it.
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sexual orientation disinheritance

Is Disinheritence Because Of Sexual Orientation Legal?

In Canada, the law balances the idea of testamentary independence against public policy concerns. Two British Columbia courts have ruled that in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. To date, this issue has not been addressed in Ontario's courts.
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Where There is Life There is Hope

Moe Maraachli and Sana Nader's recent dispute with a hospital over the fate of their terminally ill child highlights a debate over end of life issues. The author reviews an Ontario case to highlight how Ontario has death with the tension of a patient’s right to consent to treatment and a doctor's right to advocate for what he/she feels are in the best interests of the patient.
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