Wills and inheritance
There are people who will not encounter criminal procedures in their lives, some will not ever file a claim in their lives but everyone will come across the area of wills and inheritance. The obvious reason for this is that, sadly, we all have a relative who has passed away. When a person passes away one has to regulate the way his/her property will be distributed, if by a will or by the force of the inheritance law.
In the article below I’ll discuss the area of wills and inheritance, according to the law in Israel. I’ll discuss the questions of what is a will, what is an inheritance according to the law, how can one oppose a will or an inheritance and what has to be done in order to realize a will or an inheritance.
What law regulates the wills and inheritance law in Israel?
The law regulating the area of succession/wills and inheritance in Israel is called the Succession Law, 5725- 1965 (the “Law of Succession”). This law deals with all matters relating directly or indirectly to the area of inheritance and wills. In other words: how does one draw up a will, in what forms can one draw up a will, what does the law state in the absence of a will, who are the heirs according to the will, what is the law in the absence of heirs, which legal instance has the authority to judge in matters of wills and inheritances, how to oppose a probate or an inheritance and other subjects.
What is a will?
A will, as its name, reflects a person’s will – wishes and wants. It is a legal document where a person orders what shall be done with his/her property (and in some case, with his/her body too) after his/her death. The will is a very essential document and it is for a good reason that the law determines meticulously how to draw up a will, in what way it should be drawn up and what happens when a will is drawn up not according to the guidelines of the inheritance law.
Article 18 of the law of succession states that a person can draw up a will in a few different ways: a will can be written by hand – by the testator himself. It can be done before an authorized authority (court, the register of inheritance, the Rabbinic court), before witnesses or, in exceptional reasons – orally. A will is a very personal document and the testator may change his/her mind at any stage of his/her like, as long as the new will is drawn according to the guidelines of the law, as I will explain below.
Hand-written will – as implied, a will written by hand, by the testator him/her self. Article 19 to the law states that a will such as describes above is acceptable. However, for a hand written will to be accepted as legal, it has to written by the testator him/her self, bare his/her signature and the date is was written. Hand written wills are most common and embody the wishes of the person in the best way. However, there are times where the court comes across cases where wills were forged or written under coercion.
A will before witnesses – this will is similar to the first one, i.e. it should be done in writing and bare a date but the difference is that it must be drawn before two witnesses, who must sign it too, authorizing that the will was drawn up properly according to the law. Article 20 to the law states that a will can be made in front of witnesses to. The law also states that a will can be deposited with the registrar of Inheritance, be it a hand written will or a will before witnesses. Deposition the will is “so called” evidence to the fact that the will was drawn up in a legal way. There are people who prefer to deposit the will so as to prevent future dispute (between the hairs). Deposition a will does not prevent the testator from recalling it and changing it as he/she wishes.
A will drawn up before a public authority – Article 22 to the law states that a testator can draw up a will before a public authority, i.e. the family court, the inheritance register or a religious court (Rabbinic, Shari or any other religious court recognized in Israel). This will can be drawn up in two ways: by submitting the will to the judge as part of a special process or by reading the will for protocol. After the will has been submitted to the authority, the instance who received the will (i.e. the judge or register or the religious court judge) will authorize that the will was legally drawn up before him/her.
A will drawn up orally – an oral will is a complex will, legally speaking. Things that are said could cause dispute due to the fact that there is no record of what was said and it could be a case of “your word against mine”. For these reasons, the law states strict conditions that have to be met, for the will to be recognized as legal.
The conditions for recognition are:
- The testator has to believe that his/her life is coming to an end soon (i.e. dying)
- The oral will has to be made before two witnesses.
- After the will has been said, the witnesses have to write a record of the testator’s instructions (protocol or minuets) in real-time.
- After the will has been said and the protocol written, the witnesses have to approach, as soon as possible, the inheritance register and deposit the will.
- If the testator does not pass away within a month, his/her will is canceled with no advance notice.
Due to the strict limitation of such a will, as explained above, one could say that this kind of a will is “an emergency” will. The legislator feels the same since the strict conditions of the law are meant to prevent harsh disputes that could arise in such circumstances.
What is an inheritance?
A will is given by a person willing his property distributed after his/her death, according to his/her wishes. There are many people who do not bother to draw up a will and leave an “empty void”, but this void does not really exist. Even if a person did not draw up a will, the law of succession states a default. According to article 10 of the law, the hairs of a deceased person are: his/her children (entitled to half of his/her property) and his/her spouse (who will inherit the second half of the property). They are known as “hairs by law”
In accordance with the law of succession, in the absence of a will, the heirs will act in accordance with the default set by law, namely: the heirs will be “heirs by law”. The way to challenge the default set by the law of succession is by making a will. If the person who died did not have children or a spouse, then the inheritance will be transferred to the State of Israel.
What you should know prior to writing a will?
As mentioned above, a will is a legal document aimed to fulfill the wishes of the testator in his/her lifetime. There are also clear conditions for the preparation of a will. But for a will to be a valid legal document, there are a number of additional conditions that have to be met, regarding the method of drawing up the will, the way it is written etc. as I will describe below.
A will is an exclusive instruction – as a rule, a written will is a clear statement of the testator wishes. Article 27 of the Inheritance Law states that a written will shall be considered as sole and exclusive evidence to the way it should be implemented. If the testator committed him/her self orally, to a third party, the hairs will not be obliged to this commitment and the third party will have no case to oppose the will.
A will can be changed at any moment – . Article 27 also rules that a person writing a will can change it at any time. A will that includes a clause that cannot be changed will be suspected of being written under coercion. That is why this condition is fundamentally invalid.
Only the testator can write the will – Article 26 rules that a will can be written only by the testator. In addition, if the testator was incompetent or a minor and did not have the ability to understand the meaning of the will and its implications, then the will won’t be valid. Moreover, Article 28 (b) stats that only the testator can write the will, not his/her spouse, children or any other person.
What is a mutual will and what is the law regarding it?
Imagine a situation where a man is married and living in an apartment with his wife. The man passes away, and now, according to the Inheritance law, the wife and children inherit the apartment. The children and their mother are not on good terms and now that the father has passes away, they want to sell the apartment (their part of the inheritance), but their mother objects. The children file a claim to the court for dissolution of sharing. In such a case, the mother could find herself homeless because the court can rule that the apartment be sold and the money from the sale split, according to the parts of ownership of the apartment. This scenario might be a bit extreme but it could happen. The same could happen if the husband had drawn up a will by himself and in it he states that the apartment be bequeath to his wife and children.
In order to prevent such situations you can draw a mutual will. This will is a shared will between the husband and wife and actually freezes any action in the couples assets, even if one of them passes away. The joint will is drawn by the couple and relates to their common assets. This will obliges both sides, even when one has passes away. A mutual will is an option that has been added to the law a few years ago.
There could be a case where a person will want to revoke the mutual will, after his/her partner has passed away; the inheritance law has made provisions regarding the way one can revoke a mutual will. In general, as long as both parties are alive, the mutual will can be revoked by notification.
When one of the parties has passed away, if the common assets have not been divided yet (i.e. all the assets of the deceased spouse and the living spouse) one can revoke the will as long as the living spouse commits not to petition to get property which is not defined as his common property. If the assets have been divided, then the partner revoking the will, will be required to return the property received from the inheritance.
What does the law say in case of a faulty will?
As in any legal document, the will might have faults in it, which will cause dispute between the parties. However, unlike faults in a contract, where the court can easily understand the meaning intended by the writes of the contract, when it comes to a will, the court has a difficult time understanding the testator’s wishes, due to the fact that he/she has passed away and cannot be asked. There are cases where the fault in the will is minor, like a type-O or small discrepancy, and it would not be justifiable to revoke the whole will just because of such a small error. On the other hand, there are cases where the discrepancy is significant and could bring to the revoking of the will.
For cases such as the ones described above Article 25 of the law rules that the family court has the authority to authorize a will, even if it has a discrepancy. This discrepancy could be a type-O (as mentioned), a contradiction, incorrect use of words, bequeathing property that was not owned by the deceased etc. the one condition that has to exist is that the will was drawn up legally, i.e. if It was written by hand, it has to have a date and signature. A will without these two will not be recognized as a will at all. However, if the will is legal, the court will be able to authorize it, even though it may has a few faults.
How can one realize a will or oppose it?
In order to realize a will you must go to the Inheritance register and get a probate order. The procedure involves publishing in the newspaper and a waiting period. The reason for publishing is to inform any third party that a request for probate has been filed so as to enable the third party to oppose the will, if they so wish.
If a request for probate has been opposed, the Inheritance register has to hand over the matter to the family court. It there is no opposing of the will, the register will grant the probate. From the moment the probate has been issued the heirs can realize the will – sell the deceased’s apartment, for example, or divide his/her property, draw money from his/her bank account etc.
If the objection to the will is accepted, the court will instruct how to realize the will or maybe cancel it. If the court rejects the objection the matter will be returned to the Inheritance register who will grant the probate.
In cases where the deceased did not leave a will an objection can be submitted too. As in the case were a will does exist, the heirs have to go to the Inheritance register and request for an “application for the inheritance”. The same rules apply, i.e. publication and a waiting period. If the application has not been opposed, the inheritance order will be granted. If it is opposed, the matter will be handed over to the family court.
What can one claim when opposing a will?
Force or coercion or threats: There is no doubt that a person who writes a will, under coercion or force, does not write it out of a true and sincere desire. Therefore, the inheritance law rules, in Article 32, that a will that was drawn in coercion or threats or force, will be canceled.
However, anyone who claims that the will was made under coercion or under similar circumstances is obliged to prove it. I’d like to clarify that the inheritance law uses strong words, such as coercion or force, but that does not mean that such acts of violence must be done. For example, a threat to harm a person’s livelihood, certainly constitutes as “coercion”, which might cause a person to do something against his/her will.
A clerical error in the will: a will that includes mistakes, could lead to vagueness and contradictions that could lead to misinterpreting the testator’s wishes. Not every mistake requires cancellation of the will, but often significant discrepancies may result in the cancelation of it. The court has the authority to order the probate of a will with certain changes, even if discrepancies were found in it.
Illegal will: an illegal will, that contradicts the public interest, will be canceled. This is stated in section 34 of the Inheritance Law. For example, a will that orders any act of crime, so as to obtain benefits from the will. Such an order is contrary to the law and the natural moral and therefore is canceled.
I have tried to discuss a range of subjects regarding the law of inheritance and wills. A will is a document drawn up by the testator. Inheritance by law is the default ordered by the law, when there is no will. To realize a will or an inheritance you must approach the Inheritance register and request for a probate.
My last recommendation is that you go to an experienced family lawyer when you want to draw up your will or if you need advice regarding probates.