Public policy and the disinheritance clause
May 11, 2012 | Charles Wagner
Ian Hull will be arguing that Jewish continuity is of vital importance to Canada and hence a clause disinheriting Howard Shapiro is not void and does not offend public policy. But, I am starting in the middle of the story, so let’s start from the beginning.
Hull is one of Canada’s premier estate litigation lawyers. He was chosen by LawDay as one of the top 60 leading lawyers in Canada in the practice of estates and trusts. B’nai Brith Canada’s Estates and Trusts, Lawyers Division, is pleased that he has once again agreed to participate in the Continuing Legal Education seminars we offer. The purpose of these seminars for lawyers and accountants is to update them on issues relevant to their practice and of concern to their clients. The format will be moot trial with experienced counsel arguing both sides of the issues.
The fact scenario before the moot court involves a person who disinherited his child for marrying outside the Jewish faith. At issue is whether the disinheritance clause is null and void for offending public policy.
Hull will be representing the estate and be arguing that the disinheritance clause is not void and does not offend public policy. I will be advocating for the disinherited beneficiary and arguing that the disinheritance clause runs afoul of public policy and should be struck down.
So what would a court look to in making a decision about a disinheritance clause? The first issue would be “certainty.” I will be submitting that the court should strike such a clause because there is no universally accepted definition of who is a Jew. There is a distinct difference in the definition of who is a Jew in the Reform, Conservative and Orthodox branches of Judaism. Furthermore, even among the Orthodox community, there is debate as to the propriety of certain Orthodox conversions. Hull will argue that there is no uncertainty in this case because the will in question specifies that the rabbi of Shaarei Shomayim will determine whether the spouse in question is a Jew in accordance with Orthodox Jewish law.
The next issue a court might address in a case like this is whether the condition restrains a beneficiary’s ability to marry and/or whether the clause infringes on his freedom of religion. My submissions will include the argument that forbidding someone to marry a gentile wrongfully imposes the testator’s vision of religious propriety on his son. Hull will argue that is not the case. He will point out the dangers intermarriage poses to the Jewish community and their continuity. He will also point to certain American cases that stand for the proposition that such a clause is valid because the testator’s intent was not negative with the intent to discriminate, but rather the intent was positive – to promote Jewish continuity.
Hull is not the only high-profile lawyer who volunteered his time for this seminar. Jordan Atin of Hull and Hull LLP is playing the judge. Kelly Charlebois of Miller Thomson LLP is also representing the estate. 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 email@example.com.
Charles B. Wagner is a partner at Wagner Sidlofsky LLP and is certified by the Law Society of Upper Canada as a specialist in Estates & Trusts Law. Wagner Sidlofsky LLP is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.