disinherited

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Certain obligations can trump testamentory freedom

June 1, 2012 by Charles Wagner

As regular readers of this column undoubtedly know there is a seminar set for June 5, 2012. For this column, I want to focus on one aspect of the seminar, organized by B’nai Brith Canada’s Estates and Trusts, Lawyers Division, that deals with the moral obligation of parents in their testamentary planning to include children as beneficiaries.

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

In Tataryn, a British Columbia case, the court stated that a parent has a moral duty to act like a judicious parent and give a proper share of the estate to his or her spouse and children. In the court’s view, this obligation is based on the prevailing societal, legal and moral norms. The court noted that the moral claims of adult children are not as strong as dependants, but if the estate is large enough, the court can vary the will and provide for the disinherited adult child who is not a dependant. The Ontario Court of Appeal, in the Cummings decision, indicated that statutes in British Columbia and Ontario are similar enough that the principles of Tataryn apply to  Ontario. So let’s review the facts of the case in our seminar and see how an Ontario court might rule.

In the fictional scenario before the Moot Court, the elder Mr. Shapiro had two children. In his will, he divided his estate equally between them, but to inherit, each child was required to marry a Jewish spouse. In the Moot Court, the executor and the daughter are arguing that Mr. Shapiro’s will is valid and should not be changed. The son, who chose to marry outside the faith, is arguing the opposite.

Kimberly Whaley, counsel for the disinherited son, will be arguing that the principles of Tataryn have been accepted by Ontario’s Court of Appeal and accordingly the Moot Court should vary Mr. Shapiro’s will and give the disinherited son his half of the estate. She will point to the Ontario case of Perilli v. Foley Estate, where the judge said that in determining how much to award a dependant who was disinherited, the court should not just look to need, but also consider the deceased’s moral duty to the dependant. Clearly the decisions in  British Columbia are having some impact. Whaley will be arguing that, given that Ontario’s Court of Appeal has adopted the principles of Tataryn, the court should vary a will where a parent has not complied with his moral duty to act like a judicious parent and disinherited a son who conducted himself in a way that is acceptable to the majority of Canadians.

Kelly Charlebois will be arguing that Ontario law is different from that of British Columbia. As counsel for the executor and daughter, she will be pointing out that to date no Ontario court has understood Cummings to mean that the moral claim of a disinherited adult non-dependent child is legally enforceable. Ontario cherishes the principle of testamentary freedom, as it has for centuries, and that is why both the statute and the court decisions in this province have never adopted the law of British Columbia.

The seminar will take place on June 5, 2012, at Shaarei Shomayim Synagogue, 470 Glencairn Ave., Toronto, ON M5N 1V8. Registration is at 7:30 a.m. and the Moot Court will begin at 8 a.m. The event is open to lawyers and accountants. Those lawyers and/or accountants interested in attending should contact Anita Bromberg, B’nai Brith Canada, at (416) 633-6224 ext. 130 or at abromberg@bnaibrith.ca.

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.