Estate Planning

"Jewish Clause" Causes Family Fued

By Hull & Hull LLP

A recent case in the United States explored the effect of a provision in a will that disinherited beneficiaries who married outside their religion. 

In re Estate of Max Feinberg involved a Jewish dentist who, in his will, had established a testamentary trust to divide his assets. 

The trust contained the provision that any descendant of the Deceased’s (other than one of his children) who married outside the Jewish faith and any of his/her descendants were treated as having died as at the date of marriage. The Deceased had five grandchildren, all of whom were, at the time of the litigation, married and only one of whom to a Jew. 

A grandchild, who was married to a non-Jew, sued the trustees of the trust alleging mismanagement of the assets. The trustees responded by saying that as the grandchild had married a non-Jew, she had no further interest in the trust and, as such, had no standing to make the complaint.  The grandchild responded that the clause should be voided.  

The appellate court, in a 2-1 decision, found that the provision was unenforceable mainly for policy reasons. The majority pointed out that allowing a clause like the one in Mr. Feinberg’s will to be valid was a slippery slope and, in extreme situations, could lead to the court enforcing “the worst bigotry imaginable.” The majority also found technical problems with the clause, such as it did not speak to what happened if a beneficiary married a non-Jew, later divorced and remarried someone who was Jewish. 

The judge who dissented was more sympathetic to the clause, suggesting that a person should be able to do what he wants with his money and that the objective of the clause was not contrary to public policy. 

Have a great day!

Megan F. Connolly

Full post as published by Toronto Estate Law Blog on September 03, 2008 (boomark / email).