By: Randi Boswell, Canwell News Service
"Three wills drawn up by a Canadian philanthropist who left a fortune to charity when he died in 2004 are at the centre of an international legal struggle.
Into each will, Eldon Foote, an Alberta-born lawyer and entrepreneur who amassed millions selling soap in Japan, wrote a "poison pill" provision. To prevent a fight over the division of his assets, Mr. Foote said anyone contesting the wills would lose their share of the inheritance.
Nonetheless, Mr. Foote's widow and five of his children have gone to court in Alberta to determine whether they would risk losing their bequests -- which include large cash payments, property and, in one case, a hockey stick signed by Wayne Gretzky -- by contesting an $8-million donation left to the Lord Mayor's Charitable Fund in Melbourne.
Also at stake in the case is an equal amount bequeathed to the Edmonton Community Foundation, which Mr. Foote's wills name as a key beneficiary.
The court is also being asked to determine Mr. Foote's true home -- as he spent time in Edmonton and also had a luxury home on remote Norfolk Island, a former penal colony in the South Pacific betwen Australia and New Zealand.
In November, the Court of Queen's Bench of Alberta ruled the family's possible legal challenge should proceed in Canada rather than Australia, a potentially pivotal victory because of differences in "domicile" law between the countries.
Noting that Mr. Foote "died a very wealthy man," Justice Robert Graesser said Mr. Foote's widow and children are seeking direction from the court on "the interpretation and validity of the 'poison pill' clause" and on "where Mr. Foote was domiciled at the time of his death."
The family has apparently argued that Mr. Foote planned to live out his days in Canada, and that the division of his estate should have more fully reflected this intention.
Mr. Foot was 79 when he died in Edmonton of pneumonia. He was a leading benefactor at the University of Alberta, where his name graces a sports field, a chair in international business law, a moot courtroom and major scholarships in nursing and athletics. Edmonton's future actors also train at the Foote Theatre School.
But, after moving decades ago to Norfolk Island, he also became one of Australia's most generous charitable donors, bestowing millions of dollars to the City of Melbourne's main community trust for a host of causes ranging from leukemia research to tennis camps for children."
This is a good example of how an international estate plan can go wrong. Adequate situs provisions in the wills, plus the no contest clauses could have prevented the mess in the Foote Estate.
Mina N. Sirkin is a Board Certified Specialist attorney in Estate Planning, Probate and Trust Law by the Board of Legal Specialization of the State Bar of California. MSirkin@SirkinLaw.com. https://www.SirkinLaw.com.