Public Policy & Estates

You are currently browsing the archive for the Public Policy & Estates category.

Undue Influence in the Estate Context amongst Orthodox Jews – is Arbitration before a Beis Din a viable option?

May 6, 2013 by Charles Wagner | No comments

Is there a moral dilemma for the Orthodox Jewish litigator?  On June 4, 2013, the B’nai Brith Canada Trust and Estates Group will be presenting a seminar on dealing with fraud as it impacts on the elderly, their assets and estate disputes.  In choosing topics for this year’s seminar and having in mind our constituency, the committee felt it would be remiss if it did not address this topic and how members of our community who face this issue deal with alternative dispute resolution avenues.

Many Jews believe that when there is a dispute between Jews, those altercations must be decided in accordance with Jewish law and before a Jewish court.   Such Jews may believe that, to do otherwise, would be tantamount to declaring publicly that the secular court system of justice is preferable to that of the Beis Din.  The Shulchan Aruch condemns those who go before a secular court for challenging the value of the Torah’s legal system.  Nonetheless, both in commercial and estate contexts, we sometimes see Orthodox Jews bringing their disputes before the secular courts.

For an Orthodox Jewish lawyer who is representing Jewish parties who are suing one another in a secular court, an ethical question arises.  It gets further complicated where the client’s rights under secular law far exceed the rights they may have under Orthodox Jewish law.  And this may very well be the case in the laws of inheritance.  For the upcoming seminar on June 4, 2013, we have invited Archie Rabinowitz of Dentons Canada LLP and Rabbi Mordechai Torczyner of Yeshiva University to address this topic.  What happens when an Orthodox Jewish client believes that his Orthodox Jewish sibling has committed a fraud to secure assets he might otherwise be entitled to under secular law but not under Jewish law? How would a secular court deal with these issues and how would the Beis Din?  Both Archie Rabinowitz and Rabbi Mordechai Torczyner are uniquely suited to address these questions.

Rabbi Mordechai Torczyner is Rosh Beit Midrash of the Yeshiva University Torah miTzion Beit Midrash Zichron Dov, Toronto, Ontario.  Previously he served as a pulpit rabbi in Allentown, Pennsylvania, and in Pawtucket, Rhode Island.  Since his arrival in Toronto, he has impressed many in the community with his intellectual honesty, breath of knowledge in both secular and religious studies and commitment to raising the level of Jewish study amongst the modern Orthodox Jewish community.

Archie is certified by the Law Society of Upper Canada as a specialist in Estates & Trusts Law.  He has chaired the prestigious Law Society of Upper Canada Annual Estates and Trusts Summit since 2008 and is preferred counsel for LawPRO advising on professional negligence cases arising out of contentious estate and trust matters.  He has extensive trial and appellate experience, including cases which in part deal with Halachic issues.

The event will take place on June 4, 2013at Shaarei Shomayim Synagogue, 470 Glencairn Avenue, Toronto, Ontario, M5N 1V8.  Registration is at 7:30 a.m. and the presentations will begin at 8:00 a.m. sharp.  The event is open to lawyers and accountants.  Those lawyers and/or accountants who are interested in attending should contact Anita Brombergof B’nai Brith Canada at 416 633 6224 x130 or email abromberg@bnaibrith.ca.

Dealing with a Testator Whose English is Suspect

April 18, 2013 by Charles Wagner

It seems self evident and almost trite to say that a will must reflect the intention of the testator.  Accordingly, those parties who come to court and submit that the will in question is authentic and valid must prove, among other things that the Testator knew and approved of the content of the will.[1]  Mistakes in how instructions are taken and the execution of the will may result in disappointed beneficiaries and liability to the solicitors who took the instructions, drafted the Will and saw to its execution.  The purpose of this paper is to:

  1. examine how courts have dealt with the issue of knowledge and approval of contents as it relates to non English speaking testators;
  2. reflect on the risks to having the will declared invalid; and
  3. address the issue of potential liability to disappointed beneficiaries and consider the wisdom of certain practices when dealing with such testators.

A careful review of the court’s treatment of these issues may give solicitors reason to reexamine and adjust their will drafting practices.

What is Knowledge And Approval of Contents

In Lidstone v McWilliams[2], the Supreme Court of Canada stated that:

“…The propounder of a will must satisfactorily establish (a) that the testator had testamentary capacity at the date of the execution of the will; (b) that the will had been duly executed and attested, and (c) that the testator knew and approved of the contents thereof.”

The Supreme Court of Prince Edward Island[3]  described the obligation of knowledge and approval as follows:

“For knowledge and approval it must be proven that the testator knew and approved of the contents of the will, that the testator realized what is in the will and agreed that is what she wanted. Once the propounder proves that the will was properly executed after it was read to or by the testator and the testator appeared to understand it, the propounder is aided by a rebuttable presumption that the testator knew and approved the contents. The presumption is rebutted if it is shown that the testator did not really understand the contents even though it was so read. When suspicious circumstances are shown, the propounder must show knowledge and approval affirmatively, or depending on the circumstances probate may be refused for all or part of the will: Oosterhoof on wills and Succession (5th ed.), at pp. 168-169; Feeney’s Canadian Law of Wills (4th ed.), at § 3.1.”

It is important to note that knowledge and approval may overlap with issues relating to capacity or undue influence, but they are not the same thing.  One may understand and approve of a aill, but still not possess the testamentary capacity either because the decisions contained therein are rooted in delusions or a result of disease or forgetfulness.[4]  Furthermore, a testator may know and understand the contents of a will, but has been coerced to sign because of undue influence which goes to capacity.[5]

In Vout v Hay[6]  the Supreme Court of Canada indicated that while the propounder of the will has the legal burden to show due execution, knowledge and approval, and testamentary capacity, once there is evidence of due execution and of the will having been read over to the testator, who appeared to understand it, a rebuttable presumption exists that the testator knew and approved of the contents of the will.  The Court further went on to explain that this presumption of knowledge of form and content is rebutted where there are suspicious circumstances present.  At that time those seeking to establish that the will is authentic reassume the legal burden of proving knowledge and approval.

Suspect English and Suspicious Circumstances

Does the inability of the testator to read or write English constitute suspicious circumstances?  In certain circumstances the courts have concluded that the testator’s inability to read or speak English gives rise to suspicious circumstances.  Let’s review the case law.  In Re Sopel[7]  an elderly woman could neither read nor write English, but knew the language well enough to understand what was being said to her in English.  The testatrix executed a will, the prime beneficiary of which was the wife of the lawyer who drafted and facilitated its execution.  The application for probate was rejected, in part, because the will was not read to the testatrix and the court concluded that she did not know or approve of the contents of the will.   While it was in dissent, one of the judges made the following comment that impacts on our discussion:

“Mrs. Sopel was in the position of a marksman or blind person. It was the duty of the appellant to advise her that it was necessary that it be read over to her in the presence of the witnesses. Considering the bequest to his wife, the fact that he did not so advise her gives rise to suspicion.”

In the Schatz Estate case, [8] the testatrix was a woman whose native tongue was German.  She was not comfortable speaking English and could neither read nor write.  The testatrix’s daughters (and beneficiaries under the will) reviewed the will with their mother and summarized its contents to her in German.  The Court referred to the Saskatchawan Surrogate Court Act which required that the due execution of a will for an illiterate person required that the will was read over to the testator.  The Court also noted comparable practice in Ontario and quoted MacDoneel, Sheard and Hull which stated:

“When the testator has executed his will by making his mark, the proof shall show that before its execution the will was read over to him and that he had knowledge of its contents and appeared perfectly to understand the same.  This rule does not mean that if the will has not been read over to such a testator it can never be proved, but only that it cannot be proved in common form.  The will could still be propounded in solemn form, and if it was established that the testator had a clear knowledge of its contents it would be entitled to probate.”

In the Schatz Estate case, the court considered what “read over” meant in this context.  Its relevance to our discussion bears it being quoted in full.

5.      There is something to be said for reading the words “read over to” in a wide sense to include “summarized to”, “explained to” and the      like.  In fact, one dictionary definition is “to cause another to become acquainted with the contents of something written”.  If narrowly interpreted, petitions which really involve only non-contentious business may come to involve proof in solemn form.  Moreover, those involved in the execution of wills know that, in fact, wills are, in circumstances involving execution by mark, often summarized or explained rather than read over word for word, the latter being, in many situations, a futile exercise. Putting this thought into terms of the present petition it may be said:

(1)

   That word for word translation from a will written in   English (to a testator whose “comfortable” language was German) to   German is not theoretically possible.  

(2)

   The testator would not have understood a word for word   reading of the will in any event.  

Does this lead to a wide and flexible interpretation of the words “read over” as a practical step?

6.      I think, as seems to be suggested in Probate Practice, supra, that the words “read over” mean exactly what they say.  If a broad and flexible interpretation were accepted, witnesses to the execution of wills executed by mark would soon be swearing that the will had been “read over” in various broad and flexible senses and all that would be coming before a surrogate or probate judge would be the affidavit in statutory form provided by section 38(2).  There would be no question by the surrogate or probate judge — the statutory requirement would have technically been met.  The decision would be for the petitioner and his solicitor whether the circumstances of the execution and explanation or summarization justified the swearing of the affidavit in statutory form.  The words would eventually come to mean different things to different people.

7.      In result, in my view, it is better that the words “read over” be regarded as meaning read over verbatim and not be equated with “summarized”, “explained” or “made acquainted with”.  If the words “read over” are to routinely appear in affidavits in support of common form petitions for grants of probate, it is best, and the legislature must have so intended, that the words have the usual and restricted meaning.  If it were otherwise it would be for an individual deponent to use the words as he sees fit.  While a layman may be able to “explain” or “summarize” this will adequately, it will not always be so.  Errors — intentional and nonintentional — are certain.  There are not that many cases of testators executing by mark without the will having been read over.  Solicitors rarely omit reading over and they supervise most executions by mark.  Executions by mark are unusual with lay people.  Proof in solemn form need not be, in non-contentious cases, overly formal or lengthy.  In the present case my present inclination is that little will be required to prove the will of the testatrix in solemn form.

In a 1999 Alberta Surrogate Court case[9] the validity of the will was attacked.  The testator’s English skills were virtually non-existent and the interpreter for both the providing instructions and reading of the will was a non-arm’s length party to the beneficiary. The court concluded,

“The problem in this case is that the deceased had little or no ability with the English language. His interpreter was a loyal supporter of the beneficiaries named in the will. I am not sufficiently satisfied that the deceased understood how he was disposing of his property in order to be able to hold, in good conscience, that in this case there was a proper testamentary disposition.”

In the 1994 Sguigna Estate case before the Ontario Court of Justice – General Division[10] the testratix could not read or write English and had only very basic verbal English skills.  The court opined that her inability to communicate in English directly related to her lacking knowledge and approval of the contents of the will.    The Court quoted the principle stated in Tyrrell v. Painton et al.,[11] by Davey L.J. as follows:

“the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless the suspicion is removed.”

The lawyer taking instructions spoke to the testator in Italian.  However, the lawyer was from the north of Italy and the testator was from the south. They spoke different dialects so that while the lawyer could understand the testator, the testator was unable to completely understand the lawyer.  The son of the testator, who was the prime beneficiary under the will, picked up the copy of the will and presented it to his mother for signature before two witnesses (who also did not speak English).  The court rendered the following decision.

“I am satisfied from this evidence that Annetta [the testator] was presented with a document which was entirely in English, which she could not read, and which Fred confirms he did not read to her. Nor did he explain to her its contents. I find that it was witnessed by two persons who did not know what was in the document and who cannot testify to the formalities for execution required under the Succession Law Reform Act. On those grounds and on that evidence alone I find that Fred, as the person offering the will for probate, has failed to meet the onus of proving due execution and knowledge and approval of the contents of the will by the testratrix. Accordingly this will shall not be admitted to probate.”

Clearly this case indicates that when a testator does not speak English, it can give rise to suspicious circumstances which rebuts the presumption that the testator had knowledge and content of the will. Claims of solicitor’s negligence may arise if those who propound the will fail to prove it authentic and are unable to establish that the testator knew and approved of the content of the will.  For those with non English speaking clients this issue suggests that one would be wise to review the manner of taking instructions and seeing to the execution of a will.

Of particular interest to me is paragraph 31 of Haley J.’s decision, “It is not sufficient in establishing the knowledge and approval of the contents of the will by the testatrix to show that she understood the primary dispositive feature of the will. While she may not understand the technical law relating to powers of executors and priority in payment of debts it is essential that she understand the complete chain of the dispositive provisions, e.g., gifts over.”   Often lawyers dealing with unsophisticated illiterate clients only deal with the main points in the will in a very summary fashion.  Is that enough?  For Justice Haley the answer seems to be no.

Dealing With Testator Who Cannot Read, Speak or Understand English

Solicitors who do not take proper steps to ensure that the will properly reflects the testator’s instructions risk liability to disappointed beneficiaries.  In discussing the issue of solicitors’ liability in negligence cases, Ontario’s Court of Appeal[12] referred to M.M. Litman & G.B. Robertson G.B. article on “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity”. [13]  The Court states:

“….The authors then identify solicitors’ common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a will. These include:

•     the failure to ascertain the existence of suspicious circumstances,

•     the failure to react properly to the existence of suspicious circumstances,

•     the failure to provide proper interview conditions (e.g., the failure to exclude the presence of an interested party),”

So what is the best way to deal with a testator whose English skills are so suspect such that those who oppose a will may use that deficiency in the English language to challenge the will?

In preparation for this paper I have reviewed a number of the checklists, text books and cases relating to this issue and will review some of the options presently in use by solicitors and recommended by different authorities.

The Client’s English is good enough……

There are some solicitors who feel quite capable of communicating with a testator whose English is suspect either because the testator’s will is a simple one or they are persuaded that the testator’s English is good enough to understand the explanation given.  Some cases suggest that regardless of a testator’s suspect English skills, a will should be probated if the solicitor satisfies the court that he sufficiently explained the will so that the testator had knowledge and approved of the will’s Content. [14]

On the other hand, there is case law that says the exact opposite.  In the case of the Dansereau Estate[15] the testator was bilingual in matters of everyday living, but her first language was French.  She felt more comfortable speaking French when dealing with complicated or sensitive issues.  Therefore even when the will was reviewed and explained to her by a senior estate lawyer, the court found that the testator did not have the requisite knowledge and approval of the will because the lawyer seeing to its execution was unable to explain in French the documents that he presented to her for execution.

Clearly, the court’s decisions will always turn on facts specific to each case.  However, the best practice is to ensure that the manner of a will’s execution leaves little room for doubt and that the testator’s knowledge and approval of the will can later be proven in court.

Someone in my office speaks……

A common practice for people working with ethnic communities is to hire administrative staff who speak the language.  As well, lawyers sometimes work in their own ethnic communities and use their supplementary languages skills as a marketing feature.  Under these circumstances the courts have often approved of lawyers who read over and explain the will to testators in their own language[16] and the various law society and text book checklists often recommend referring such a testator to someone who speaks the testator’s language in order to avoid the allegation of suspicious circumstances.[17]

Unless the person in the law office has a proper command of both the English language and the language of the testator there is the risk that the will cannot be probated and the solicitor who took the instructions and saw to its execution risks liability to disappointed beneficiaries.  The courts have looked askance at wills when the comprehension of the testator was put into question because the lawyer and client spoke Italian of different dialects.[18]  Each case will turn on its facts, but common sense dictates that if either the testator’s or translator’s language skills are not sophisticated enough to accurately communicate the contents of the will the risk of the will being overturned and liability to the solicitor is enhanced.[19]

Testator’s Friend acts as Interpreter

The testator brought in a friend and makes it clear in broken English that this friend will translate on his behalf.  The friend translates the instructions and reads over the will and summarizes it for the plaintiff.

This practice poses a number of difficulties.  Unless the solicitor is familiar with the client and his friend it is difficult to independently determine the testator’s intentions, capacity and knowledge of the content of the will.  In Re Vleeming Estate[20]  the testator knew no English.  He brought in a friend to act as translator who, unbeknownst to the solicitor who drafted the will, was a loyal supporter of the beneficiaries named in the will.  The court ruled that this was not a proper testamentary disposition.

In his book, W. A. McIntyre rejects this option because “doubt will remain as to the competence and objectivity of the interpreter.”[21]

Employ A Certified Interpreter – The Gold Standard

The Law Society of British Columbia recommends, “As for the testator whose first language is other than English, the wisest course, if the solicitor does not speak the client’s first language, is either to send the client to a solicitor who does speak that language, or if that is not possible, to employ an interpreter.”[22]  One author suggests that the solicitor should retain an independent professional interpreter who will certify that the will was fully and fairly translated to the testator.[23]

Two objections have been raised with respect to this solution.   Some suggest it raises the bar too high and that the additional costs make it impractical.  Adding an additional $150 will price the solicitor’s services out of the market.

Despite these objections, McIntyre’s suggestions seem like the best way for a solicitor to ensure that the propounders of the will can later prove that the testator possessed knowledge and content of the will.   The fact that this practice may be more than is usually necessary should not dissuade those considering its uses.  An independent interpreter’s certification kept on file will further limit will challenges and reduce the chance of accusations of negligence.

The concern that using a translator makes the drafting of simple wills cost prohibitive is a concern.  However, for many who practice in this area it is rare that a solicitor ever recovers his/her usual hourly rate for the preparation of a simple will.  They are drafted in any event because the solicitor anticipates additional revenue streams from the fees associated with acting for the estate upon the testator’s demise.  If that is the case the additional costs are a low price to pay.

One final comment. This article is intended to help those involved in the estate planning process to be familiarized with some of the issues relating to the requirement that a testator have knowledge and approval of the contents of his or her will.  It is not a substitute for lawyers’ own research and analysis.  It is not intended to provide substantive legal advice nor opinions.

 


[1] Feeney’s Canadian Law of Wills, 4th ed., loose leaf, by Thomas G. Feeney & James Mackenzie (Toronto: Butterworths, 2000) Chapter 3 page 3.1

[2] Lidstone v McWilliams, [1931] 3 D.L.R. 455 (S.C.C.)

[3] Praught Estate, Re, 2002 PESCTD 1, 2002 CarswellPEI 2, 208 Nfld. & P.E.I.R. 64, 624 A.P.R. 64, 43 E.T.R. (2d) 289 (P.E.I. T.D.)

[4] Batten Singh v Amirchand (1947), A.C.. 161 (P.C.) 170

[5] Martin Estate, Re 53 D.L.R. (2d) 126; [1965] S.C.R. 757,

[6] Vout v. Hay, [1995] 2 S.C.R. 876, 7 E.T.R. (2d) 209, 125 D.L.R. (4th) 432

[7] Reference Re Sopel Estate,  1951 CarswellMan 39, 3 W.W.R. (N.S.) 451

[8] Schatz Estate, Re (1976), [1976] 5 W.W.R. 549, 1976 CarswellSask 68 (Sask. Surr. Ct.)

[9] Vleeming Estate, Re [1999] A.J. No 180; 1999 ABQB 141

[10] Sguigna Estate, Re, 1994 CarswellOnt 3298, [1994] O.J. No. 1612 (Ont. Gen. Div.)

[11] Tyrrell v. Painton et al., [1894] p.151 at pp. 159-60

[12] Hall v Bennet Estate 2003 CarswellOnt 1730, 15 C.C.L.T. (3d) 315, 171 O.A.C. 182, 64 O.R. (3d) 191, 227 D.L.R. (4th) 263, 50 E.T.R. (2d) 72

[13] “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity” [13](1984), 62 Can. Bar Rev. 457.

[14] Krzanstek Estate v. Volcko [1990] A.J. No. 416

[15] Dansereau Estate v. Vallee[1999] A.J. No. 878 1999 ABQB 557

[16] Boutzios v. Boutzios, 2004 CanLII 14219 (ON S.C.);  Karzanstek Estate v Vocko 74 ALtlR 2d 221

[17] http://www.lawsociety.bc.ca/docs/practice/checklists/G-2.pdf; www.lawsociety.bc.ca/docs/practice/checklists/G-3.DOC

[18] Sguigna Estate, Re, 1994 CarswellOnt 3298, [1994] O.J. No. 1612 (Ont. Gen. Div.)

[19] Dansereau Estate v. Vallee[1999] A.J. No. 878 1999 ABQB 557

[20] Vleeming Estate (Re) [1999] A.J. No. 180;  1999 ABQB 141

[21] McIntyre, WA, Practical Wills Drafting. Toronto: Butterworths, 1992 p. 6.

[22] http://www.lawsociety.bc.ca/licensing_membership/pltc/docs-material/estates _ch3.pdf  paragraph 3.05; Re Shumlay Estate [1946] 3 W.W.R.. 540

[23] McIntyre, WA, Practical Wills Drafting. Toronto: Butterworths, 1992 p. 6 and Chapter 14.

Have Ontario’s Courts dispensed with Strict compliance with the Formalities of Execution?

August 12, 2012 by Charles Wagner

Imagine that Johnny is dying.  The doctors tell him to get his affairs in order.  The patient’s only living relative is an elderly aunt whom he despises.  Johnny wants to give all his money to his Church but, without a Will, by virtue of Ontario’s laws of intestacy that aunt will inherit everything.  A lawyer prepares a Will setting out Johnny’s testamentary wishes.  Johnny walks into the lawyer’s office, reads the will, and says it’s perfect.  There is no doubt as to Johnny’s intent as the lawyer has taken the precaution to videotape the whole process.  Johnny picks up the pen, is about to sign and dies.  Is the Will valid in Ontario?  It is almost certainly not valid [FN1], but there remains some doubt.  If everyone knows Johnny’s true testamentary intentions what rationalization exists for not accepting the unsigned document as a valid Will?

The legislatures, courts and Law Reform Committees in Canada have provided different policy reasons to justify strict compliance with the formalities of execution.  It’s been suggested [FN2] that the formalities of execution:

  1. Ensure that the Will was executed by the person purporting to be the testator and prevents a ne’er-do-well from impersonating the testator or someone from forging the testator’s signature;
  2. Avoid fraud, undue influence and coercion;
  3. Enhance the testator’s appreciation of the importance of the document;
  4. Make the administration easier with respect to granting probate; and
  5. Prevent opening the flood gates to various claims respecting documents that are purportedly wills.

In Ontario the rules with respect to wills, known as the formalities of execution, are set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA].  The formalities of execution require that a will be in writing (s.3) and signed by the testator (or by some other person in the testator’s presence and by the testator’s direction), with the testator acknowledging their signature in the presence of two or more attesting witnesses present at the same time. Further, the will must then be signed by the two or more witnesses in the presence of the testator (s.4).  Section 4(1)(a) of the  SLRA is clear and unambiguous.  A will is not valid unless, at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction [FN3].   Do Ontario courts have discretion to dispense with the formal requirements imposed by the SLRA ?  Several Ontario cases suggest the answer may be yes.

In Sisson v. Park Street Baptist Church [FN 4], the Court upheld a will where two witnesses were present when the testator executed the will, but only one witness signed the will. It is important to note that in Sisson the application was not opposed and the witness that had not signed had failed to do so inadvertently.  In Malichen Estate [FN 5] a husband and wife inadvertently executed each other’s wills. The Court upheld both wills.  Before jumping to any conclusions that these cases are reflective of a trend for Ontario courts to recognize substantial compliance  it is important to note that in both these cases the errors were inadvertent. Moreover, many believe these cases were decided incorrectly.  O’Flynn J. in Sills et al. v. Daley reviewed Sisson, Malichen and declined to follow them.  Instead, he followed Hindmarsh v. Charlton, Ellis v Turner, Bolton v Tartaglia and Re Murphy Estate.

In paragraph 40 of Sisson v. Park Street Baptist Church [FN 6], Justice Murphy of the Ontario Court of Justice stated, “that the absence of legislation on point should not stop the court from developing the common law where, in circumstances like this, there has been substantial compliance, given that the dangers which two witnesses are to guard against does not exist here.”  Justice Murphy’s judicial activism on this issue stands in stark contrast to Justice Cullity’s approach in Etorre [FN 7] where in response to a submission seeking substantial compliance His Honour stated, “….I would be reluctant to apply the principle of substantial compliance in the absence of a legislative mandate, or its endorsement by an appellate court.”[FN 8]  It seems that most other cases in Ontario adopt Justice Cullity’s approach [FN 9]. From Justice Cullity’s perspective courts must comply with the directions of the legislature and are not at liberty to change the law introducing uncertainty.  As the court stated in Hindmarsh v Charlton [FN 9a]  “…we must obey the directions of the legislature, and are not at liberty to introduce nice distinctions which may bring great uncertainty and confusion”

When considering the issues in this debate it is important to remember that the SLRA. provides certain instances where a testamentary disposition is valid without compliance with the formalities of execution.  These include:

  1. Holograph wills which are wills wholly in the testator’s writing, and signed by the testator without the necessity of subscribing witnesses [FN 10];
  2. Wills prepared by member of forces on active duty [FN 11]. Wills prepared by members of the forces, such as the Canadian Forces, on active duty do not need to be witnessed; and
  3. Gifts Mortis Causa [FN 12];

Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance:  Is close enough good enough?”[FN 13] provides a very interesting perspective on this debate.  She quotes John Langbeins’ article [FN 14], in support of substantial compliance.  Lanngbein asserts, “The rule of literal compliance… is a snare for the ignorant and the ill-advised, a needless hangover from a time when the law of proof was in its infancy”.

It is clear that the logic of the “substantial compliance” argument has impacted on the Canadian legal landscape.  A number of provinces have enacted legislation specifically giving judges the discretion to dispense with the formalities of execution, as long as the document in question substantially complies with the formalities of execution required by its local provincial legislation and is in accordance with the testator’s wishes. Examples of such legislation include the Saskatchewan Wills Act [FN15], Manitoba Wills Act [FN16], Nova Scotia [FN17] and soon British Colombia [FN18].  Ontario has not amended its legislation to provide for substantial compliance.

Right now, in Ontario, there remains a level of uncertainty because certain judges have appeared to step outside what seems to be the clear intent of the governing legislation.  This issue will be resolved only when either Ontario’s legislature or the Ontario Court of Appeal or legislature eventually deal with the issue.

Our short review of the law should not be taken as legal advice.  Based on our experience in dealing with these cases, they often turn on their specific facts.  If the reader believes this topic to be relevant to a legal matter in which they are involved, nothing replaces retaining a competent lawyer who will do a thorough analysis of the law and the fact situation to provide proper advice.

The authors are Charles B. Wagner and Liliana Ferreira. Liliana is an associate and Charles is certified by the Law Society of Upper Canada as a specialist in Estates &. Trusts Law and is a partner and at Wagner Sidlofsky LLP. This Toronto Law office is a boutique litigation firm whose practice is focused on estate, commercial and tax litigation.

 

____________________________________________________

FN 1.     In Ontario, almost all the cases that address this issue stand for the proposition that full compliance with the formalities of execution is required for a will to be valid.  The two exceptions are Sisson v Park Street Baptist Church (1999), 24 E.T.R. (2d) (Ont. Gen Div.) [Sisson] and Malichan Estate 6 E.T.R. (2d) 217, (Ont. Gen. Div.).

FN 2.     Please See the Alberta Law Reform Institute, “Wills and the Legal Effects of Changes Circumstances” Final Report No.98 August 10, 2010 found at http://www.law.ualberta.ca/alri/docs/fr098.pdf   Alberta Law Reform Institute – Wills:  Non-Compliance with Formalities, Formal Report No. 84 June 2000.  Alberta Law Reform Institute, “Wills:  Non-Compliance With Formalities.  December 1999 found at http://www.law.ualberta.ca/alri/docs/cm008.pdf  ; Estate Litigation basics – 2010 Update CLE BC found at http://www.cle.bc.ca/PracticePoints/WILL/11-ProbateActions.pdf .  See Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance:  Is close enough good enough?” found at http://www.stepjournal.org/pdf/TQR2004i4p6.pdf .

FN 3.  Brian A. Schnurr, Estate Litigation, 2nd ed., chapter 18.13; Papageorgiou v. Walstaff Estate, [2008] 2620, 42 E.T.R. (3d) (S.C.J.).

FN 4.  Sisson.

FN 5.  6 E.T.R. (2d) 217, (Ont. Gen. Div.).

FN 6.  Sisson.

FN 7.  Ettorre Estate, Re (2004), 2004 CarswellOnt 3618, 11 E.T.R. (3d) 208 (Ont. S.C.J.) [Etorre].

FN 8.  See paragraph 37 of Etorre and Hidmarsh v. Charlton (1861) H.L. Cas. 160.

FN9.   See Sills v. Daley (2002), 3 E.T.R. (3d) 297 (S.C.J.) and  Papageorgiou v. Walstaff Estate, [2008] 2620, 42 E.T.R. (3d) (S.C.J.).

FN 9a.   Hindmarsh v. Charlton (1861), 8 H.L Cas. 160 at 166-167.  For more on the issue of judicial activism in Canada I refer the reader to  “Remarks of the Right Honourable Beverley McLachlin, P.C.” which can be found at http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm04-11-12-eng.asp .  In her address she tries to address the following question, “What then of the accusation that courts have gone beyond their proper role? The charge is made that activist judges – politicians cloaked in judicial robes – have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic.”

FN 10.  Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26.

FN 11.  Succession Law Reform Act, R.S.O. 1990, c. S.26. , sections 5 and 6;

FN 12.  Section 72(1)(a) the Succession Law Reform Act, R.S.O. 1990, c. S.26;

FN 13.  See pdf copy of the article at http://www.stepjournal.org/pdf/TQR2004i4p6.pdf ;

FN 14.  John H. Langbein “ Substantial Compliance with the Wills Act” (1975) 88 Harv. L. Rev. 489;

FN 15.  The Wills Act, Chapter W-12.1, 1996, section 37.

FN 16.  The Wills Act, C.C.S.M., c. W150, section 23.

FN17.  Wills Act, R.S.N.S., 1989, c. 505, section 8A

FN18.   Wills, Estates and Succession Act, S.B.C. 2009 c. 13 (Bill 4) (not yet in force), section 58(3)

Will Your Child Marry A Jew?

May 11, 2012 by Charles Wagner

Excluding the Orthodox community, some estimate that 72% of North American Jews intermarry.

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.

For the Jewish community in general, and the Israeli community in particular, the issue of continuity is very relevant.  If the statistics are correct, 7 out of every 10 non-orthodox Jews may choose a partner that may lead to the elimination of their Jewish identity.  In one controversial study done in 1975 there was a prediction that 60 years from now North American Jewry may be reduced by 85-95%.

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

  1. Balance the right of a testator to determine who is entitled to his bounty weighed against provisions that might offend public policy; and
  2. The moral duty of a parent to include a child in his inheritance.

While the question of whether a “disinheriting provision” might offend public policy is certainly interesting, of more concern to the estates bar is the argument that the moral duty of a parent to include a child in one’s testamentary planning is legally enforceable.  In British Columbia, the courts have varied wills because they consider that the moral duty of a parent to include a child in their will is a legal duty. In some jurisdictions in Europe there are forced heirship laws requiring a certain percentage of every estate to be bequeathed to the testator’s spouse and children. To date, unlike the courts in British Columbia, there is no case in Ontario where a court has revised a will to the benefit of a healthy non-dependant adult child who was disinherited. However, certain cases, like the Court of Appeal decision in Cummings v. Cummings, 2004 CanLII 9339 (Ont. C.A.), suggest that Ontario courts will be taking the moral entitlement of adult children dependants into account when reviewing competing claims.

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 event 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.

 

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

November 11, 2011 by Charles Wagner

Mr. Rasouli was in a permanent vegetative state. Fed through a tube inserted into his stomach, he was only being kept alive by a mechanical ventilator.  Believing there was no realistic hope of recovery the doctors wanted to remove his life support. His family said no.  Who has the right to make these decisions? 

The doctors suggested that they do.   The family disagreed.

As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death.  Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation. 

This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice (FN1).  It was appealed to the Ontario Court of Appeal (FN2).  Now leave is being sought to have the matter heard by the Supreme Court of Canada.   Thus far, the courts have sided with Mr. Rasouli’s family.  This case depends on the definition of “treatment” in the Ontario Health Care Consent Act (FN3) (the “Act”) and the steps set out by the Act to resolve disagreements between doctors and substitute decision makers about treatment plans.  Let’s review the law.

The Act provides that medical treatment shall not be administered without the consent of the patient.  If the patient is not capable of giving consent, the treatment must be approved by the person appointed as the patient’s substitute decision-maker.  Sounds simple?  It’s not. 

Key to the Court’s review is the legal meaning of the word “treatment”(FN4).  Also fundamental to the decision making process are the real wishes of the patient.  The substitute decision-maker’s wishes were unimportant – it’s what the patient wanted to do that is key.

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.  What did they mean by “inhumane”?  In my review of similar cases, and paraphrasing some of the arguments, it seems that in this situation the doctors may feel that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity.  It is the extension of death – not life and they argue is inhumane (FN5).

There was some sympathy at the Ontario Court of Appeal for this position.  While they dismissed the doctors’ appeal the Court recognized that their position was serious and warranted careful consideration.

Let’s examine why they sided with the Rasouli family.  There are a number of definitions relating to “treatment” in the Act and both the Superior Court of Justice and the Court of Appeal pointed out that the definition of a “plan of treatment” involved “… the withholding or withdrawal of treatment in light of the person’s current health condition”.  Moreover, given that Mr. Rasouli’s wishes were not known, the Act allowed the doctors to apply to the Health Care Consent and Capacity Board to disregard the substitute decision-maker’s decision to maintain life support. At issue before the Board would be what was in the best interests of the patient. 

The court decisions will likely only delay the argument as to who has the right to decide.  Both the doctors and the Rasouli Family have a right to appeal to the Ontario Superior Court of Justice the decision of the Board on questions of law or fact. On an appeal, the court is authorized to exercise all the powers of the Board, to substitute its opinion for that of a physician, a substitute decision-maker or the Board or to refer the matter back for a rehearing. (FN6)

Why is this case so important to the Jewish community?

End of life issues have halachic implications.  Do we want a stranger whose views on end of life issues may not be in accordance with halacha to be the decision maker?  It is for this reason that both the Rabbinical Counsel of America (RCA) and Agudath Israel have drafted Halachic Living Wills.  I have written extensively on this topic and refer the reader to http://bit.ly/halivwill  This article canvasses the issues, reviews some relevant case and provide links to both the RCA and Agudath Israel precedents (FN7).  I caution the reader that these precedents were drafted for American jurisdictions.  Accordingly, anyone contemplating their use should review the halachic living will precedents with a competent lawyer in your jurisdiction to ensure they would be enforceable here.   

There is another issue relevant to all Canadians regardless of their religious affiliations.  Our health care system is in crisis.  Many say that it is underfunded and mismanaged.  At the initial hearing before Madam Justice Himel the hospital, separate and apart from the doctors, brought up the issue of limited resources.  At the hearing, their lawyer argued that hospitals could be overwhelmed with individuals with no hope of recovery remaining on life support for extended periods of time and thereby deny those who can be helped access to scarce resources.  This issue was not argued at the Court of Appeal, but it is an issue of importance.  Is the lack of funding a driving issue in this debate? 

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they 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.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

 ___________________________________________________________

FN1.  Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 CarswellOnt 1650, 2011 ONSC 1500, 105 O.R. (3d) 761, 231 C.R.R. (2d) 26.  An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII).

FN 2.  Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre  2011 ONCA 482.  An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.

FN3.  See online version of the legislation provide by e-laws which can be found at Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

FN4.  The Ontario Court of Appeal’s decision at paragraphs 19-24  review the relevant provisions with respect to the use of the term “treatment” under the Act.  See sections 1, 2, 10, and 21.  The Court of Appeal’s analysis is set out below.

20]      Of those provisions, the operation of s. 21 of the Act warrants brief explanation. It sets out the principles that a substitute decision-maker must follow in deciding whether to give or refuse consent to a proposed treatment on behalf of an incapable person.

[21]      Under s. 21(1)1., if the substitute decision-maker knows of a wish, applicable to the circumstances, expressed by the incapable person while he or she was capable, after attaining age 16, then the substitute decision-maker must abide by that wish and give or refuse consent in accordance with it. (Ms. Salasel accepts that that provision has no application in her husband’s case).

[22]      Section 21(1)2. applies where the substitute decision-maker is unaware of any such wish (as is the case here) or where compliance with such a wish proves impossible. Under those circumstances, a substitute decision-maker must act “in the incapable person’s best interests” in deciding whether to give or refuse consent to a proposed treatment.

[23]      Section 21(2) of the Act sets out various factors that a substitute decision-maker must take into account in deciding whether the proposed treatment is or is not in the incapable person’s best interests. Broadly speaking, those factors fall under two heads, one relating to the values, beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to the nature and medical value of the treatment proposed in the circumstances (s. 21(2)(c)).

FN5.  Please see Justice Cullity’s decision Scardoni v. Hawryluck, 2004 CanLII 34326 (ON SC) and in particular paragraphs  39 -50 where he reviews the concept of well being under section 21(2) (c) of the Act.  In this court case a decision of the Board was appealed to the court. The Board directed the family to consent to the removal of their mother from a ventilator. The family argued that by virtue of a power of attorney for personal care they were appointed as substitute decisions makers.  While the decision of the Board was overturned on the issue of “Best Interests” and “Quality of Life” Justice Cullity agreed with the Boards position when it stated, “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”

FN6.      Appeals to the Ontario Superior Court of Justice from decisions of the Board on questions of law or fact are permitted by section 80 of the Act. On an appeal, the Court can substitute its opinion for that of the doctor, the substitute decision-maker and or the Board.  Equally important the Court “may receive new or additional evidence as it considers just.”

FN7.     See the website provided by the Orthodox Union of  Orthodox Rabbis entitled “End of Life Issues – Halachic Resources and Forms”.  This is available on line at http://bit.ly/ouresrc and is an invaluable resource.  Please note that any precedent used has to be taken to a competent lawyer in your jurisdiction to determine if the forms provided are applicable to the particular client and specific jurisdiction.  Questions to be addressed include whether  there will compliance with the formalities of execution in the relevant jurisdiction and whether the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation?   If it does then is the Power of Attorney is invalid or is it saved by the concept of  “protector” as outlined in Waters; Law of Trusts in Canada? I have addressed some of these issues in an article “Are Halachic Powers of Attorney for Personal Care Binding in Ontario?” which can be found at http://bit.ly/halivwill

IS DISINHERITENCE BECAUSE OF SEXUAL ORIENTATION LEGAL?

August 19, 2011 by Charles Wagner

Will a Canadian court vary or set aside a will when a parent disinherits a gay/lesbian child because of his/her sexual orientation?  The law may be different depending on the province.

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 the will offensive to public policy and or equity.  In Ontario, this restriction on testamentary freedom has been expressed by laws passed to protect spouses (under Part I of the Family Law Act [FN1]) and dependents (under Parts II and V of the Succession Law Reform Act [FN2]). 

Two true stories from British Columbia:  In both Patterson v. Lauritsen [FN3] and Peden v. Peden Estate [FN4], a parent disinherited or reduced the inheritance of a child because the parent did not approve of the child’s homosexuality.  The Court in each of these cases held that, in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child. 

Would the same thing happen in Ontario?  Maybe – maybe not.  In the British Columbia cases, even though the parents had capacity and were not subject to undue influence, their wills were open to challenge on the ground that the parents had disinherited their children without, what the court considered to be, reasonable cause. While the Ontario Court of Appeal has stated that the “moral considerations” underpinning the British Columbia approach apply in Ontario, to my knowledge, there has been no case to date where an Ontario Court has varied a will to benefit a non-dependent disinherited adult child [FN5].  In Ontario, except where a will offends public policy, it is still open to debate whether a capable parent, acting voluntarily, is entitled to disinherit a child - however whimsical, mean-spirited, or controlling such action may seem. 

A comment made by an Ontario judge in 1995 is of interest insofar as it suggests where an Ontario court may draw the line.  In Fox v. Fox Estate [FN6], a decision of the Ontario Court of Appeal, the father named his wife the executrix under his will.  The income was to be used for the grandchildren with the capital for the son.  The will also gave the mother an unfettered discretion to encroach on the capital of the estate for the benefit of her son’s children. She took all the capital, eliminating her son’s inheritance because he was involved with a non-Jew.  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”. The Court viewed the mother’s behaviour as being mala fides and contrary to public policy.

Testators that ignore the changing winds of public policy do so at their own peril.  In M v. H, [FN7] the Supreme Court of Canada compelled Ontario to change the definition of “spouse” as set out in the support provisions of the Family Law Act. Prior to that case, common-law heterosexual couples were included in the definition of spouse, but gay and lesbian couples were not. The Supreme Court of Canada ruled that, for the purposes of support under the Family Law Act, a spouse includes “…either of two persons …”. The court ruled that limiting the definition of “spouse” to heterosexual couples, for the purposes of support, was discriminatory and not justifiable.  In Canada today same-sex marriages are legal.  It is therefore entirely possible that an Ontario court would set aside a provision in a will that disinherited someone because of his/her sexual orientation, on the grounds that such disinheritance offended public policy.

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they 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.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.   The author gratefully acknowledges the assistance of Michelle Kotzer in the preparation of this article.

________________________________________________________________________________________ 

FN1.  Family Law Act, R.S.O. 1990, c. F.3

FN 2.  Succession Law Reform Act, R.S.O. 1990, c. S.26

FN3.   Patterson v Lauritsen (1984) CarswellBC 381, 58 BCLOR 182, [1984] 6 WWR 329, 17 ETR 316.  Available on line at Patterson v. Lauritsen, 1984 CanLII 353 (BC SC)

FN4.   Peden v Peden Estate (2006) CarswellBC 2801, 2006 BCSC 1713, [2007] WDFL 1837.  Available on line at Peden v. Peden, Smith et al., 2006 BCSC 1713 (CanLII)

FN5.   See Justice Cullity’s 1998 decision of  Banton v. Banton, 1998 CanLII 14926 (ON SC) and in particular paragraph  36  where he states, “It is hardly necessary to say that the principle of freedom of testamentary disposition is in the background to the issues relating to the validity of the wills of December 21, 1994 and May 4, 1995. If George Banton had capacity and was not subject to undue influence at the time of the execution of one of those wills, its validity and effect are not open to challenge on the ground that he thereby disinherited his children. In this jurisdiction, unlike others in Canada and elsewhere, unless the children are dependants, a capable parent acting voluntarily, is entitled to do this however mean and ungrateful it may seem, or how selfish the motive; hence the focus in this case, as in so many others, on testamentary capacity and undue influence.”

Compare this with the decision of the Court of appeal in Cummings v. Cummings CanLII 9339 (ON CA).  At paragraph 40,  Blair J. A. states, “[40]         In my view these questions have been resolved by the decision of   the Supreme Court of  Canada in Tataryn v. Tataryn Estate 1994 CanLII 51 (S.C.C.), [1994] 2 S.C.R. 807.  There, the Court  held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make.  In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23.  I see no reason why the principles of  Tataryn should not apply equally in Ontario, even though they were enunciated in the context of   the British Columbia Wills Variation Act R.S.B.C. 1979, c. 435, in which the language is somewhat different from that of  the Succession Law Reform Act.

I also recommend  the reader to see  Susan J. Woodley’s paper entitled “The (Almost, Possible, Probable) Right of an Adult Child to Receive Support”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education.

FN6.    Fox v. Fox Estate 1996 CanLII 779 (ON C.A.), (1996), 28 O.R. (3d) 496, 10 E.T.R. (2d) 229 (C.A.),

FN7. M. v. H. [1999] 2 S.C.R. 3. I refer the reader to an aritlce written by Mary C. Hurly entitled “Sexual Orientation and Legal Rights”. The article appears on the Parliament of Canada Website and can be found at Sexual Orientation and Legal Rights (PRB 08-49E) . When considering the impact of the decision and how it reflects on public policy in Canada her conclusion speaks to how a court may view the public policy issue. “Judicial and legislative reforms, particularly since the M. v. H. decision in 1999, have effected a significant shift in Canadian society with respect to recognition of the legal status and claims of same-sex conjugal couples. The watershed nature of this shift is illustrated, most notably, by federal legislation sanctioning same-sex marriage.

Opponents of these reforms continue to argue that the extension of same-sex rights in general, and same-sex marriage in particular, undermine the traditional family and family values. At the same time, some gay and lesbian couples (like some heterosexual couples) do not want either the legal obligations or the benefits that flow from spousal status or marriage. As the 2002 report of the former Law Commission of Canada and other indicators suggest, the question of whether the matter of entitlements based on the marital or conjugal nature of a partnership should be re-examined remains open.”

A Trustee Is Not Entitled To Use Trust Property For His Own Benefit

March 29, 2011 by Charles Wagner

 Justice Strathy of the Superior Court of Justice ordered that Mr. Zimmerman repay nearly $500,000 in compensation he took as an attorney for property (FN1).  The judge also ordered that he personally pay the legal costs of the other side amounting to $284,362.19 (FN2).    What happened?

 Let me first introduce you to Robert and Signe McMichael.  During their lives they collected Canadian art from artists like Tom Thomson and the Group of Seven members. In 1964 they donated their art collection to the province of Ontario and by 1981 the Collection had grown to include more than 2,000 artworks. This Collection is truly a Canadian national treasure. (FN3).

In 2001 Robert and Signe McMichael made mirror wills (FN4).  Both husband and wife left everything to each other.  Signe’s Will, (like her husband’s) said that if her spouse predeceased her, then when she died, Signe’s assets would be donated to the Collection.   Mr. McMichael died in 2003 and his assets were inherited by his wife. 

 After her husband’s death, Mrs. McMichael signed a power of attorney appointing Mr. Zimmerman as her sole attorney for property.   In early 2004 Mr. Zimmerman’s lawyers prepared a trust document appointing Mr. Zimmerman as the trustee.  Mr. Zimmerman then transferred virtually all of Mrs. McMichael’s assets including the art collection into the trust so that there was virtually nothing left in her estate. 

 Under this new trust, Mr. Zimmerman had sole and unfettered discretion to decide which art related organization would receive Signe’s assets years after her death.  Effectively, the new trust rendered the Will meaningless. Instead of inheriting everything immediately after Signe’s death, the Collection would get nothing.  If the new trust went unchallenged it was totally up to Mr. Zimmerman to decide whether the Collection would receive any of Signe’s assets.

 When Mrs. McMichael died in 2007 her niece and husband, the executors under the Will, commenced a legal proceeding.  They asked the court to declare that the Power of Attorney and the Trust were void on the ground that Signe lacked capacity.   They also wanted Mr. Zimmerman to pass his accounts in a separate proceeding. 

 The only issue before Justice Strathy was Mr. Zimmerman’s passing of accounts.  To pass his accounts Mr. Zimmerman had to show what assets of Signe’s he received and how the money under his control was spent.  As an attorney for property it was Mr. Zimmerman’s statutory and common law duty to keep proper accounting records and proof/vouchers to demonstrate that the money spent was for the benefit of Mrs. McMichael.  This duty is imposed on trustees because it is a basic fundamental principle of trust law that Mr. Zimmerman, as a trustee, was not entitled to use the trust property for his own personal benefit.  If Mr. Zimmerman did use Signe’s assets for his own personal benefit or if he could not account or explain to the court how he spent the money then he would be liable to return it.

 When Mr. Zimmerman tried to pass his accounts the fireworks started.

 Whatever accounting that was provided was incomplete.  Mr. Zimmerman could not or would not provide proper explanations about how he spent the money.  The court found that Mr. Zimmerman breached his fiduciary duties and failed to exercise his powers and duties diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.  Mr. Zimmerman did not comply with his obligation to keep proper accounts and was not in a position to prove that he administered the trust prudently and honestly. He did not have the accounts ready and was not able to give full information when required. 

 Mr. Zimmerman infuriated the court because he failed to respond to appropriate objections to his accounts.   The judge drew an adverse inference that by failing to respond properly to the questions raised by the Collection and the estate trustees Mr. Zimmerman was guilty of taking the money for himself and would be required to reimburse the estate for those disbursements and expenses (FN5).

 This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they 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.

 Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

 _______________________________________________________________________________________

FN1.  Please see Zimmerman v. McMichael Estate  2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 and in particular paragraphs  29 and 88 and 90 for the proposition that a fiduciary may not profit from his role, paragraph 30 for the fiduciary’s duty to account, and paragraphs 35,43 45, 49 and 89. 

 

FN2.  Please see the second Zimmerman decision.  The first was decided on May 20, 2010 and cited in FN1.  The second was decided on October 4, 2010  and can be found as Zimmerman v. Fenwick 2010 CarswellOnt 8372, 2010 ONSC 5452.

FN3.  Robert and Signe McMichael  founded  the Collection,. Some of the history of the Collection, is described in the judgment of the Court of Appeal in McMichael v. Ontario (1997), 36 O.R. (3d) 163, [1997] O.J. No. 4661 (Ont. C.A.), leave to appeal refused, (S.C.C.)..  Their website can be found at http://www.mcmichael.com/

FN4.  It is important not to confuse the terms “Mirror Wills” and Mutual Wills.   Mirror Wills are identical to one another.  Mutual Wills creates an agreement which equity enforces that the wills will not be changed.   I refer you to the explanation of Histrop, Estate Planning Precedents which excerpts from Canadian Forms of Wills, 4th ed. BY Terence Sheard and the late Rodney Hall,  “  Although a will is by its nature revocable, a testator may, by agreement, create equities in his assets that will be enforceable against those who derive title from him (Dufour v. Pereira (1769), 1 Dick. 419; Stone v. Hoskins, [1905] P. 194; 39 Hals., 3rd ed., p. 851; see also Re Hagger, [1930] 2 Ch. 190). The commonest manner in which such equities are created is through the making of joint or mutual wills  but the mere fact that two wills are made in identical terms does not of necessity imply any agreement to constitute equitable interests so as to, in effect, make the will of the survivor irrevocable” .

FN5.  The finding of an adverse interest is very important with respect to accounting.  Under the common law section 32(6) and 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30  and under the regulations Accounts and Records of Attorneys and Guardians, O. Reg. 100/96 the attorney for property has a absolute strict duty to in accordance with the regulations, keep accounts of all transactions involving the property of the grantor of the Power of attorney.  Justice Strathy, in his judgment, addresses what happens when the attorney fails to keep proper records: 

Duty to Account:  trustee has an obligation to keep proper accounts. A trustee must keep a complete record of his/her activities and be in a position at all times to prove that he/she administered the trust prudently and honestly. He/she must have the accounts ready and give full information whenever required. (see para 30)

Adverse Inference:  An attorney who fails to retain receipts supporting substantial cash withdrawals or expenses charged against the incapable person’s property has not adequately carried out his/her duties and will be held personally liable for the unsubstantiated withdrawals (para 35)  It is a basic principle of trust law that a trustee is not entitled to use the trust property for his or her own personal benefit.  Trustee has onus to prove disbursements were legitimate.   If a trustee cannot account for or explain disbursements or expenses charged against a trust he/she is personally liable to the trust for those disbursements (paragraphs 43 45, 49 and 89).

Where There is Life There is Hope

February 26, 2011 by Charles Wagner

When should hospitals take away a person’s right to make end of life decisions? 

This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre.  The parents want their terminally ill child discharged from the hospital to die at home.  The hospital refused.   The parents lost at the Health Care Consent Board and lost their appeal in court (FN1).  Without commenting on this very sad case it once again raises the issue of who has the right to make life ending decisions for people who are not capable of making those decisions themselves.  Should it be the parents of a child or the hospital?  If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide? 

A case in Ontario which dealt with this dilemma was Scardoni v. Hawryluck (FN2).  Here a power of attorney authorized two daughters to make decisions concerning their mother’s personal care and to give or refuse to consent to treatment. Their mother always told them “where there is life there is hope”.   So even though the doctor said there was no chance for their mother to recover, and in spite of their mother’s pain, the daughters insisted that all efforts be expended to prolong their mother’s life.  The doctor disagreed because while the ventilator and drugs would sustain the mother’s life, the mother’s disease was incurable and in the doctor’s opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.

Before analyzing the judge’s decision let’s review the law.  The governing legislation in Ontario is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A .   Under section 10 (FN3) a doctor may not administer treatment unless he has the consent of the patient.  It is arguable whether he needs the patient’s consent to withdraw treatment.  Where the patient is incapable of giving his consent, pursuant to section 10, the doctor needs the permission for the recommended treatment from the Substitute Decision Maker who was designated under the power of attorney for personal care or alternatively by statute.  If the Substitute Decision Makers will not consent to the doctor’s proposal the doctor can apply to the Health Care Consent Capacity Board who has the authority to order the Substitute Decision Maker to consent.(FN4)  Either party may appeal the decision of the board to a judge of Ontario’s Superior Court of Justice (FN5).   That is what happened in Scardoni v. Hawryluck.  The Capacity Board directed the daughters to follow the advice of the doctor.  The daughters refused to go along with the doctor who wanted to take their mother off the ventilator and instead appealed the Board’s decision to the Ontario Superior Court of Justice.

The Scardoni v. Hawryluck case was decided by Justice Cullity.  He had to decide whether the Power of Attorney was specific enough to indicate the mother’s wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation.  The hospital’s lawyer argued that the power of attorney was too vague because the mother could not have known about how painful and hopeless her situation would be.  Given that their mother’s instructions were unclear, the doctor argued that the legislation directed the daughters to make their decision based on what was in the best interests of their mother.  The doctor argued that it was in the patient’s best interest to withdraw treatment because the mother no longer had any quality of life.  While Justice Cullity agreed that quality of life was a factor in determining the best interests of the patient, he still granted the daughters’ appeal and stopped the hospital from withdrawing the life saving treatment.(FN6)  In his view, the power of attorney was specific enough and the mother made her treatment wishes known to her children.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they 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.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

 _______________________________________________________________________________________ 

FN1.   For newspaper reports on this story I refer you to http://www.nationalpost.com/related/topics/index.html?subject=Capacity+Board+of+Ontario&type=Organization

 FN2.   Scardoni v. Hawryluck 2004 CarswellOnt 424, 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700

 FN3.  Section 10 provides that treatment shall not be administered unless the doctor is “of the opinion that the person is capable with respect to the treatment, and the person has given consent; or he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act

 FN4.  The principles for making decision by a Substitute Decision maker is set out in section 59 of the Act.   A person who makes a decision on an incapable recipient’s behalf concerning a personal assistance service shall do so in accordance with the following principles:  1. If the person knows of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish.  2.  If the person does not know of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the recipient’s best interests.   Under section 69(3) in determining whether the substitute decision-maker complied with section 59, the Board may substitute its opinion for that of the substitute decision-maker

 FN5.  See section 80.  (1) which states that a party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

 FN6.  Section 10 provides

 A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 

 In Scardoni v. Hawryluck there is a very interesting part of this judgment at paragraphs 39 – 41.   Justice Cullity  said as follows: 

The first question is whether s. 10(1)(b) imposes an obligation on a health practitioner to obtain the consent of the substitute decision-maker to a decision to withdraw, or withhold, particular treatment. Notwithstanding the inclusion of such proposals in the definition of a “plan of treatment” and the inclusion of such plans in the definition of “treatment,” Mr. Underwood suggested that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. While a proposal of a plan of treatment that includes a withdrawal, or withholding, of one or more particular treatments would be a proposal of treatment within the opening words of s. 10, the obligation “not to administer treatment” would, on this interpretation, apply only to positive steps to be taken to treat the patient’s condition. On this line of reasoning it would follow that a substitute decision-maker’s consent – or, presumably, that of a capable person – to a withholding of treatment is not required by s. 10(1) and, to that extent, in Mr. Underwood’s submission, the Act does not alter the common law.. 

 In other words, arguably, doctors do not need permission to withdraw or withhold treatment.

DNA Testing and Estate Litigation

February 11, 2011 by Charles Wagner

“She is not my daughter.”

The court heard evidence that the late Kerry Kelly did not believe Shauna was his daughter. (FN1)    Kerry believed that Shauna’s mother “… cheated on me with no sex protection”.  The judge believed Pamela Proulx, Kerry’s sister, who said that Kerry never recognized Shauna to be his biological daughter.  Aunt Pamela applied to court to obtain a DNA test of Shauna and compare it to a sample of Kerry’s DNA to see whether Shauna was Kerry’s biological daughter.  Shauna opposed the application.  Let us review some of the reasons why the DNA test was worth fighting about and the legal arguments used by each side.

Kerry died intestate which means that he passed away without a legal will.  According to the law of Ontario (FN2) where an unmarried person dies intestate his children receive the estate. (FN3)   For all purposes, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children (FN4).  Since Kerry did not have a will Shauna’s entitlement to an inheritance turned on her being the biological child of Kerry.  So now we understand why Aunt Pamela wanted Shauna to take a DNA test and why Shauna resisted taking one.  If the DNA test proved that Shauna was not Kerry’s real daughter then she does not get an inheritance from Kerry’s estate.  On what grounds could Shauna argue that she did not have to take the DNA test?

Shauna argued that that under s. 8 of the Children’s Law Reform Act Kerry was presumed to be the father of Shauna because he was married to Shauna’s mother at the time of Shauna’s birth and he was also listed as Shauna’s father on the Statement of Live Birth.  Shauna argued that it was up to her aunt to rebut that presumption of paternity and, until she did, no DNA test should be ordered.

Aunt Pamela relied on section 10 of the Childrens Law Reform Act which provides that in a court case in which a child’s parentage is at issue the court may order that DNA tests take place and if that person refuses to submit to a DNA test the court may draw such inferences as is appropriate.  There is no mention in section 10 that Aunt Pamela had to rebut the presumption of parentage.  Now that you have heard both sides – what do you think Justice Coats ordered?

Justice Coats ordered that the DNA test take place.  In his view DNA testing was objective, impartial and scientific evidence and it was in the interests of justice for the court to consider the best evidence.   He preferred DNA testing to the contradictory and less certain evidence offered by the parties and other family or community members.  Does that mean that judges will always order DNA testing?  Not necessarily.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they 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.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________________________

FN1.  This name of this case is Proulx v. Kelly, 2010 ONSC 5817 and can be found on line at http://www.canadalawbook.ca/summaries/pdf/10334117.pdf

FN2.  See Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 and “Law of Intestacy in Ontario” found at http://www.wagnersidlofsky.com/articles/intestacy-in-ontario.php

FN3.  This is not a simple matter. For example, see section 47(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 which deals with the situation where a child dies before his parent.  For example, if father had 3 children A, B and C.  Assume A had 2 children of his own.  A died before father.  If father died without a will then his estate would be divided in three equal shares.  1/3 to B, 1/3 to C and 1/3 to A’s children.  With respect to Ontario Intestacy law even if A died before his father the intestate inheritance law acts still gives A his share of the estate just as if A did not predecease his father.  The late A’s portion of his father’s estate goes to A’s children.

FN4.  See section 1 of the Children’s Law Reform Act

Rectification – the Equitable Remedy to Fix Errors in a Will

November 12, 2010 by Charles Wagner

Sometimes even professionals just drop the ball. Imagine walking into your lawyer’s and asking him to make a few changes to your will. Instead of typing in a bequest of $2,500.00 the lawyer types $25,000.00. The Will is signed and no one notices the mistake until after the testator dies. That is what happened in Nugent v. Lang (http://bit.ly/dhN38j ). The lawyer admitted the error was his and he testified that the testator wanted the bequest to be $2,500. It should be simple right? Not so fast.

The Plaintiff asked the court to fix the mistake. The legal term for this request is “Rectification”. Courts use this equitable remedy very carefully. Exactly what type of evidence a judge may consider is being debated in the courts. How sure does the court have to be to fix the mistake? Is the court limited in how it can fix the mistake? In exercising the remedy is the court limited to only being able to delete certain parts of the will? Can a judge add missing words? In this case the court rectified the draftsman’s error and changed the bequest from $25,000 to $2,500.
Cases like Lipson v Lipson,( http://bit.ly/lipson ), Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44 and Balaz v Balaz,( http://bit.ly/cq9BJi] ) all involve situations where the courts fixed some form of lawyer mistake. Either there was an accidental slip or omission because of a typographical or clerical error, the testator’s instructions had been misunderstood, or the testator’s instructions had not been carried out. Despite these recent cases where judges fixed mistakes made in the will it is very important to remember that not every error will be rectified by the courts.
In Re Estate of Blanca Esther Robinson (http://bit.ly/9x5g0B ) the court refused to fix the mistake. In that case the testator signed a Will dealing with her European property. She also signed a Canadian Will dealing with her Canadian property. Years later, she made a new Canadian Will but did not tell her new lawyer about the Spanish will. Since the lawyer had no knowledge about the Spanish Will the solicitor included the standard provision revoking all previous wills. The beneficiaries asked the court to fix the mistake. The court refused. The judge stated, “….if no errors were made by the solicitor and the words in the will were reviewed and approved by the testator, rectification will not be available simply because the testator was mistaken about their legal effect.” So it seems that not every mistake will be rectified.
This short review of the case law on rectification should not be taken as legal advice. Based on my experience in dealing with these cases, they 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.

Charles B. Wagner is the managing partner at Charles B. Wagner and Associates. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

Do Mistresses Have a Right to Inheritance?

October 21, 2010 by Charles Wagner

Can you imagine burying a spouse and then being sued for support by his mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family’s an inheritance is unjust. Others argue that financial obligations should flow from the intensity and duration of life partner relationships regardless of the partners’ marital status. What do the courts think?

In Nowell v. Town Estate (http://bit.ly/nowell ) the deceased had a 24 year extramarital affair. During the week he lived with his wife, but on the weekends this man spent time with his mistress, gave her gifts worth about $125,000 and promised to support her. The mistress contributed to the man’s work as an artist without compensation. Left nothing in the will she sued the estate. Do you think she deserved any money? The Ontario Court of Appeal did.

The judges recognized that a 24 year relationship was more than casual and for the last 13 years it was quasi-spousal. The judges felt the mistress should be fully compensated because the estate was unjustly enriched. Mr. Town accepted his mistress’ help, did not pay for it, and he benefited financially. The court was influenced by the fact that the mistress made Mr. Town the focal point of her life and that through the years Mr. Town assured his mistress that he would look after her. While this did not create a legal relationship it proved the nature of the relationship. The court still awarded her $300,000.

In Mahoney v. King 1998 CarswellOnt 2348 a mistress successfully sued a married man for support because the court found that she was a common law spouse. Arguably, a mistress suing her paramour’s estate could use this case as a precedent. As a “spouse” the mistress would qualify as a dependant and would be entitled to support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 if her paramour did not provide her with adequate support. There are those like the late law professor James G. McLeod who disagreed with this decision. He took exception to the idea that a woman who had an affair with a married man who lived with his wife may be a “spouse”. While Professor McLeod understood the argument of making an unjustly enriched estate compensate a mistress like in Nowell v. Town Estate he felt that to suggest that a mistress was a spouse for support purposes takes away whatever meaning is in the word “spouse”. 

The different views of a mistress entitlement to support under the law should tell you that this issue is not a simple one. My short review of these cases should not be taken as legal advice. Based on my experience in dealing with these cases they 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.

DISINHERITING CHILDREN WHO MARRY OUTSIDE THE FAITH

October 3, 2010 by Charles Wagner

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 (http://bit.ly/bv9Rjm) a recent case suggests another review is warranted.    In Re Estate of Max Feinberg (http://bit.ly/cb5CKo ) 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.”

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 (http://bit.ly/98b5gw).  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.