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October 29, 2010
One patriarch’s estate
What if Abraham had died in British Columbia?
RICHARD M. WENNER
In the Torah, in the Book of Genesis, we read the story of Abraham. Abraham is considered to be the world’s first critical thinker, discovering ethical monotheism. He is remembered for his strength of character, his determination to follow God’s will and his loving kindness – especially to strangers. He died at age 175.
Abraham had three wives: Sarah, Hagar and Keturah. Sarah died when Abraham was 137. They had one child together, Isaac, who was born when Abraham was 99. Abraham also had a relationship with Hagar, Sarah’s maidservant. As Sarah had been previously infertile, she encouraged Abraham to marry Hagar, who bore Abraham’s first child, Ishmael, when Abraham was 86. After Sarah’s death at age 127, Abraham married Keturah. The Torah does not say whether Abraham divorced Hagar – or whether Hagar survived her husband – only that Hagar was driven away by Sarah shortly after Isaac was born, and Hagar is never mentioned again. (For the sake of this article, we will presume that she predeceased Abraham.)
Keturah bore Abraham six more children: Zimran, Jokshan, Medan, Midian, Ishbak and Shuah. At the end of his life, Abraham gave gifts to the children of his third marriage and then sent them away to the “land of the east.” The Torah does not tell us what these gifts were or their value. The commentaries suggest, however, that they were sent away so that they would not contest Isaac’s stature as “Abraham’s only true heir.” Ishmael also remains in Canaan. He joins his brother Isaac at Abraham’s funeral, where they bury their father together. While Ishmael is described as “wild,” there is no evidence of estrangement between Abraham and Ishmael. On the contrary, Ishmael is portrayed as being a very loyal and devoted son.
Abraham was very wealthy. He had apparently invested wisely in the gold, silver and livestock markets. While the precise extent of his wealth cannot be determined, the Torah provides a couple of hints as to the extent of his wealth, revealing that the area of Canaan, where Abraham lived with his nephew, Lot, which in those years was sparsely populated, was not big enough for the two of them. When a dispute arose between them, Lot chose to move to the lush valley adjacent to the cities of Sodom and Gomorrah. The only land that Abraham is known to have purchased, however, was in Hebron, for the purpose of burying Sarah.
It seems that this family had not done any estate planning. Upon his wife’s unexpected passing, Abraham was compelled to immediately purchase a burial plot. The owner of the desired property, Ephron, who was aware of Abraham’s plight, took full advantage, insisting that Abraham purchase not only the desired burial plot but also the accompanying field. The price: “400 silver shekels in negotiable currency.” Some commentators have speculated this price to be the equivalent of $1.5 million dollars in today’s currency, while others suggest it would equal $5 million. According to the era’s Hammurabi Code, a year’s wages for a working man was between six to eight shekels per year. Abraham paid 57 times the annual working-man salary for his plot. (By contrast, a home on Vancouver’s West Side might cost 25 times an annual working man’s salary.) In the Book of Kings, King Omri paid 6,000 shekels for the entire territory of Samaria. In any event, the purchase price does not appear to have adversely affected Abraham’s wealth or lifestyle.
The Torah tells us that when Abraham died he left his entire estate to Isaac and nothing to Ishmael. The six children born to Keturah also got nothing – except the gifts made prior to their departure for the east.
What if Abraham had lived in British Columbia rather Canaan? What inheritance rights, if any, might his wife and children have against his estate?
In British Columbia, the Wills Variation Act protects the inheritance rights of spouses and children who have been disinherited. The act stipulates that “if a testator [the person who makes a will] dies leaving a will that does not … make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court may … order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator’s estate for the spouse or children.”
The Supreme Court of Canada has judicially interpreted this act to mean the following: a testator has a legal and a moral obligation to make adequate, just and equitable provision for his spouse and his children. These legal and moral duties extend not only to underage children but also to adult children, even to financially independent adult children. The court has ruled that one’s primary obligation is to make adequate provision for one’s spouse. The secondary obligation is to provide for one’s children. If the estate is large enough, one must provide for both.
How does one fulfil their moral obligation to their spouse when it is a second or third marriage? How does one fulfil their obligation to an estranged child? The court provides few guidelines except that the judge is entitled to all the facts and circumstances. Once all of the evidence is fully before the court, the wisdom and morality of the situation ought to become apparent.
As a matter of course, the court will take into account all underlying factors, including:
• the wealth of the deceased,
• the length of the marriage,
• the extent to which the spouse and children were provided for prior to his/her passing,
• the financial needs of the spouse and the children,
• the fairness (or lack thereof) of the distribution,
• what the spouse and children would have received had the deceased died intestate (i.e. had there been no will) and
• anything else that may be relevant.
If Abraham had died intestate in British Columbia, Keturah would have received the first $65,000 of Abraham’s estate. The remainder of the estate would have been allocated into thirds. One-third would go to Keturah. The remaining two-thirds would have been divided equally among Abraham’s children.
Would a lawsuit commenced by Keturah, Ishmael or any of the other disinherited children have succeeded? We cannot know. We can be certain, however, that the lawsuit would tie up the estate for years and that the legal fees would be high. Given the value of the estate, the needs of the spouse, the length of Abraham’s marriage to Keturah (approximately 35 years) and the moral obligations that our society imposes upon a husband and a father, it is likely that the court would have rewritten Abraham’s will, contrary to Abraham’s explicit wishes, and reallocated the estate in a manner that would have significantly reduced Isaac’s inheritance.
Could Abraham have had his wishes implemented and avoided a Wills Variation Act lawsuit? Perhaps. The short answer is, had he engaged in some creative estate planning, there would have been a greater likelihood that his last wishes would have been followed. One alternative for Abraham might have been implementation of what’s called an alter ego trust. If properly drafted and implemented, such a trust might avoid a Wills Variation Act claim and result in avoidance of probate and probate taxes – but that is a topic for a separate article.
Richard M. Wenner practises law in Vancouver at Coric Adler Wenner. He can be reached at 604-736-5500 or [email protected].
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