In Israel, the laws of wills and inheritances are regulated by the Inheritance Law, 5725-1965. The following article will deal with wills in general and in particular the circumstances in which the question arises of the disability of the testator bequeathing to draw a will. I will demonstrate by reviewing an important judgment of the Supreme which deals with the case of a Holocaust survivor who wished to bequeath her property to her children.
Please note that the following article is general and does not serve as a substitute for legal advice.
The facts of the verdict
The verdict related to an elderly woman, a holocaust survivor, who passed away leaving 2 children. She wanted to bequeath her property but the will she left was opposed by her daughter
The dispute within the framework of the opposition was “rolled” up to the Supreme Court. The petitioner claimed that the will was made in circumstances in which her mother was not fit to make a will. Note that the deceased ordered in her will to bequeath all her property to her son, and not to the daughter, who is the applicant (the plaintiff’s brother is the respondent in the proceeding and will henceforth be referred to). There are many cases dealing with disputes between relatives regarding wills and inheritances, in circumstances where a person leaves a will after his/her death. The same applies to our case: The petitioner argued that the deceased was not fit to make a will due to mental illness, and that the will had clearly discriminated her.
Even before the procedure was heard in the Supreme Court, it was heard in the Family Court and then appealed in the District Court. The Family Court ruled that the will was indeed unfair, but no evidence was found indicating lack of judgment. Due to the findings, the Family Court ruled that the will of the deceased must be fulfilled, as it is an expression of the autonomy of the personal wish and anchored in the dignity of a testator, and in the end, ordered the fulfillment of the will. Subsequently, the petitioner filed an appeal with the District Court, but her request was rejected.
What is the law regarding making a will?
The basic principle that constitutes the basis of the laws of inheritance is that the request of the deceased must be carried out, this by relying on Jewish law – “a commandment to observe the words of the dead” (Bavli Gittin). However, section 26 of the Inheritance Law states that a will that was made by a minor or a person who has been declared incompetent (i.e. a person known as a “mentally ill”) or a will that was made by a person who does not know how to distinguish the nature of a will is revoked. However, a person who claims that the deceased was incompetent at the time of writing the will – bears the burden of proving his claim.
The meaning of “distinguishing the nature of a will” under section 26 has been examined many times in the case law of the courts. It is often stated that it is not sufficient for the testator to be aware of the essence of a will in general, but what is generally required and will be a test is the question of whether the testament was written with clarity: “In order to do what will be done with his possessions after his death the testator will be clear and correctly explain the reality around him”. The intention is that the testator must understand that he is handing over his property to a certain person. Also, the testator must be aware of the scope of the property and also aware of the expectations of the person who receives the will and who is harmed by the dispute of the will.
What types of wills are there?
In general, there are four ways to make a will, according to the Inheritance Law. Let’s illustrate each option:
Handwritten Will – It must be in the testator ‘s handwriting with the date and signature.
A will before witnesses – this will is written in writing and includes a date, as well as the signature of the testator and the names of the witnesses who declare that the will was signed before them.
A will before an authority – is conducted by oral commandment before a judge or a court registrar or an inheritance registrar or a member of a religious court. It is also possible to submit the will in writing to these parties.
An oral will – this will is usually made by a dying person, who delivers his will orally before two witnesses who document his words in writing and turn to the registrar as soon as possible.
What did the court finally rule?
Back to our case: Although the Supreme Court did indeed determine that in this case the will discriminated against and even harmed the applicant very much, the court ruled nevertheless that the will of the dead determines and therefore the will remains intact. In conclusion, it should be remembered that the rule guiding the courts is the fulfilling of the will of the deceased and therefore there are very few cases in which the original will is ruled out or changed.