Canadian foreign legal opinion
A Canadian resident passes away, and it turns out that her estate contains property in Israel. The question arises, what will happen to the property? How can her beneficiaries receive it? What actions must they take?
This article by the attorneys from our office addresses the issue of foreign legal opinions on Canadian wills and explains when a foreign expert legal opinion is required, how it must be submitted, and what weight it holds in court.
A foreign legal opinion for Canada
A foreign legal opinion is required in Canada in cases that deal with international wills and inheritances, such as the example above, cases in which the deceased lived in Canada but left behind property in Israel. In this case, the beneficiaries who petition for the will to be probated will need to present an expert Canadian law opinion to the court in Israel. The court can then probate the will, and the beneficiaries will be able to take possession of the assets left behind by the deceased in Israel.
A foreign legal opinion for Canada is required for other legal issues besides inheritance and estates, such as: enforcing court rulings, immigration, real estate, criminal law, taxation matters, insurance issues, and more.
Attaching a foreign legal opinion to a petition for probation of a will or inheritance decree
It is required to attach an expert foreign legal opinion when petitioning for probation of a will or inheritance decree, in the event that:
- The deceased drew up their will in Canada
- The deceased’s last place of residence was Canada
- There are real estate properties under the name of the deceased in Israel and/or
- There is personal property under the name of the deceased in Israel
Foreign legal opinion for inheritance and will decrees
Clause 136 of the Israeli inheritance law – 1965 (hereafter: “The Inheritance Law”) states that a court in Israel is authorized to hold a hearing at the bequest of any person who: 1) resided in Israel on the day of death; or 2) left assets in Israel.
In other words, if a Canadian citizen passed away and left property in Israel (an apartment, car, bank accounts, etc.), in order for his or her beneficiaries to receive the property they are entitled to, whether by a will or an inheritance decree, they must submit an expert foreign legal opinion along with the probate petition. Regardless of its size, as long as the property is in Israel, and the deceased is a Canadian citizen, the beneficiaries will need to attach a foreign legal opinion to their petition.
Clause 137 to the Inheritance Law states that the law of the deceased’s last place of residence applies to the inheritance he or she bequeathed. The accepted interpretation of “the deceased’s last place of residence” is their center of life at the time of death, based on the relevant circumstances and connections. So, for instance if the deceased’s place of residence at the time of death was Canada, in this case, a foreign legal opinion is required: an opinion on how Canadian inheritance laws apply to the petition for probation of the will. The opinion will specify what the Canadian inheritance laws state on this subject.
By law, when there is difficulty in determining the deceased’s place of residence, the maximum linkages test will be applied objectively. As linkages accumulate more heavily in a certain country, the court can rule that this country was the center of the deceased’s life at the time of death.
What is an expert foreign legal opinion?
An expert foreign legal opinion is a legal opinion that is prepared in the format of an affidavit regarding the foreign law to be applied to the deceased’s bequest. The opinion must be attached to the petition for probate of a will or inheritance decree that is submitted to the Inheritance Registrar at the place where the bequeathed property is located. Usually, the Inheritance Registrar turns the file over to the family court. The court then conducts a detailed examination of the petition and the attached documents, including the foreign legal opinion.
The foreign legal opinion is submitted by an attorney who is licensed to practice law in the foreign country for which the opinion is needed and who is proficient in that country’s laws. Take into consideration that this attorney may be required to testify in court regarding his or her expertise and the correctness of his or her opinion and may also undergo cross-examination.
Accordingly, an expert on foreign Canadian law could be an attorney licensed in one of the Canadian provinces (Ontario, for example), a member of the Canadian Bar Association, and someone who is authorized to appear in courts in Israel and in Canada, and has knowledge of Canadian law. An experienced foreign law expert is one who has written tens of legal opinions regarding foreign law–in our case, Canadian law.
What is the definition of a foreign law expert?
The leading court ruling on this topic is a Supreme Court ruling, civil appeal 6796/97 Berg Jacob and Sons (furniture) V. Berg East Imports Inc., in which the court stated that it is difficult to determine precisely who may be considered an expert in foreign law; however, a lawyer or jurist who deals with law through practice, academia, or otherwise, has the required qualifications to serve as a witness with expertise in the relevant foreign law.
The importance of an expert foreign legal opinion
The requirement for an expert foreign legal opinion is usually based on the rules of international civil law and it is meant to ensure that the laws of the foreign citizen’s country of residence are not violated in applying Israeli law.
The court ascribes importance to the place where a foreign legal opinion is needed, not only in issues of inheritance and wills, but on other subjects as well. For instance, in the case of the Tel Aviv District Court 43971-03-10 Shimon Yitzchak Shelzinger V. TGI Investments Inc., the court upheld a financial claim submitted by plaintiffs, claiming that the defendants cheated them, deceived them, and took money from them, based on promises to buy them real estate in major cities abroad which would yield high returns. Ultimately, they discovered that the defendants had made deceitful commitments, and that the rights to the assets were not in fact in their names. Some of the properties were in Toronto, Canada.
The court rejected the defendants’ claims and ruled that the defendants did not present a property rights registry showing that the plaintiffs’ rights are anchored in the form of shares that they claimed constituted a right to the property. Moreover, relevant to the topic of this article, there was no expert Canadian legal opinion on the issue.
Thus, the lack of an expert foreign legal opinion weakened the defendants’ claims. It can be concluded from this court ruling that attaching a foreign legal opinion would have been essential in this case and in many other similar cases.
Contact us if you need an expert foreign legal opinion
Our offices provide expert legal opinions for different countries around the world, including Canada. The foreign legal opinions from our offices are written and presented by attorneys who specialize in foreign law and who are licensed to practice law in both Israel and the foreign country.
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