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Is disinheriting Jewish?

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Howard and Martha have two children, Sam and Laura. Sam is married to a Jewish woman; Laura is on the cusp of marrying a Christian man. Howard and Martha like Laura’s fiancée, but are distraught about their family’s role in the continued existence of the Jewish people; they know that only 33 per cent of children from intermarried parents are raised as Jews.

They remember our matriarch Sarah’s declaration that wicked Ishmael would not inherit, and our matriarch Rebecca’s arrangement excluding murderous Esau from his birthright, and they threaten to write Laura out of their will.

I have been invited by The Estate and Trusts Group, Lawyers Division of B’nai Brith Canada to participate in a seminar on June 5, 2012 as part of its continuing legal education program. At issue is whether a will disinheriting a child who marries outside the Jewish faith would be valid. I will testify, as an expert witness, on continuity, intermarriage and discrimination. The seminar addresses the propriety of disinheriting a child under Ontario law, but I wish to add a question: Is this acceptable in the eyes of Jewish tradition?

Jewish law outlines an order of inheritance, and altering it is considered a violation of Jewish law. Even in Talmudic times 1,700 years ago, though, agitated parents sought to remove wayward children from the chain of inheritance.

The Talmudic sages frowned upon this approach to parenting; as one authority, Samuel, taught a student: “Do not be among those who shift an inheritance, even from a bad son to a good son, for the sort of child who will emerge therefrom is not known.”

He acknowledged the value of directing an estate to worthy children, but he was concerned about the limits of human foresight. Better to stay one’s ignorant hand, in the name of hope.

Rabbis of later generations suggested a compromise, honouring estate-shifting bequests so long as a significant sum remained in place for all heirs. In the late 20th century, Rabbi Moses Feinstein and Rabbi Ovadia Yosef authored responsa approving total or partial disinheritance in extreme cases of misconduct.

Based on this tradition, it would seem that Howard and Martha could steer the majority of their estate to Sam, and satisfy the expectations of Jewish law. But is it a good idea? The biblical book of Proverbs advises, “Listen, my son, to the instruction of your father, and do not reject the teaching of your mother.” In the 13th century, Rabbi Levi ben Gershon explained this verse to mean that parents are responsible for providing academic instruction and encouraging practical implementation of Judaism.

Certainly, punishment has its place in any educational process, but Proverbs knew that clauses in bequests are a poor way to promote the marriage of Jews to other Jews. Far more is accomplished by parents who provide education and encourage implementation, who present an inspiring example with their own healthy, positive Jewish lives, who educate their children in Jewish schools from the earliest ages through colleges like Yeshiva University, who engage their children in Jewish settings like youth groups and summer camps.

Even following these steps guarantees nothing, but presenting the benefit of a Jewish lifestyle speaks more powerfully than a financial carrot and stick.

Howard and Martha are justifiably disappointed, but the better route is to start early and educate positively, and pray for the rest to follow.

The seminar 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 ext. 130 and/or at abromberg@bnaibrith.ca.

Rabbi Mordechai Torczyner is Rosh Beit Midrash, Yeshiva University-Torah MiTzion Beit Midrash Zichron Dov.

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Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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