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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.

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.

The case law in Canada, England and the United States that deal with these types of clauses often set them aside because the clause is said to be “uncertain.” The courtsask the question whether we can be certain as to who is a Jew. They also ask the question whether such a provision is a restraint on marriage and inappropriately discriminatory. In Ohio there was a case called Shapira v. Union National Bank. The clause in question provided that if the son was not married to a Jewish girl whose parents were both Jewish then the executor would hold onto the money for seven years. If at the end of the seven years he was not married to a Jewish girl the money was to be donated to the state of Israel. The court decided that the provision was valid because its purpose was not merely a negative one designed to punish his son for not carrying out his wishes. It was to encourage the preservation of the Jewish faith and blood, hopefully through his sons, but, if not, then through the state of Israel. Would an Ontario court agree? In Quebec, in the case of Klein v. Klein, such a provision was struck down.

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 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 and/or at abromberg@bnaibrith.ca.

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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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