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Planning the next generation in a family business

What is a family business?

According to the Israel Small and Medium Enterprises Authority, 90% of the businesses in Israel are defined as “family businesses,” and more than half of Israel’s gross domestic product is generated by family businesses, and in actuality most of the market was founded and is based upon these businesses.

Despite that, only seldom do people ask what the unique features of the family businesses are and what the best way of managing such business is.

A “family business” will fall under such category upon the fulfillment of one or more agreed features such as the following:

  1. A business owned or controlled by a family or a number of families.
  2. More than one family member is employed in the business.
  3. Developing family members’ career is influenced by the mere existence of the business.
  4. Family relations affect decisions in the business including with respect to the next generation.
  5. Lack of clear boundaries between the family and the business.

 

Planning the next generation in the family business – complexities and sensitive issues

Seemingly, “family” and “business” are a contradiction that cannot be settled in the long run because the goals that are part of starting a family are completely different than the goals of starting a business.

The family business is a special “hybrid” that consists of a family and a business. Such business has unique advantages in the market and it requires unique and innovative manners of handling due to its complexity.

In actuality, many family businesses experience serious crises and sometimes are even on the brink of liquidation due to the fact that the owners did not handle their assets in the most suitable and adequate manner.

The fundamental contradiction between family and business is already evident in the business next generation – the sons who continue their father’s business (who sometimes feel less committed to the business or disagree with the manner of managing the business with their father).

As the next generation steps into the business different doubts and questions arise: how do I get my “incompetent” brother into the business and in what position?! Is it possible that one brother will give instructions to another brother at a lower rank? And many others.

Even if the family business is managed properly other problems may arise such as damage to the “uniform command” – a family member employed in the business feels sufficiently confident and knows that no one will dare to fire him, and his conduct may create problems in the business management, as well as confusion and disorientation up to damage to the business operation.

These are only some examples of the difficulties that may rise in a “family business.” From time to time we see stories on TV about struggles for control in family businesses, this phenomenon is especially discernible among the second or third generations and there are many examples. The first is the Recanati family – despite the will left by Rafael Recanati, joint management and ownership of the empire that was built after many years of labor, lasted less than three years under the management of the cousins Udi and Leon. Another affair was in the Dankner family – here too the business began to disintegrate when the third generation entered the business, and differences of opinion intensified in light of the family’s decision to join the acquisition of Bank Hapoalim, and the two cousins, Nochi and Danny Dankner headed this action whose outcome is still felt today. Along these affairs there are other families who encountered similar difficulties such as the Wissotzky family, Soglowek, Bornstein (controlling shareholders of Tempo), Eisenberg Company and many more. However, on the one hand there are families that were able to transfer control to the next generation in more peaceful ways, such as the Ofer family that found a creative solution to prevent the inevitable war of succession between the next generations, as Sammy and Yuli Ofer transferred control of the family-owned empire they built to the next generation, and declared in 2002 a separation of assets and their division among the next generation. By making this move they prevented the clash between the next generations.

Another solution is by selling the family-owned business or turning the business into a public business, with the consent of all or part of the family members. This solution is sometimes forced by the court when the conflict reaches its final decisive stages.

 

The importance of the involvement of the founders’ generation in planning the next generation

When making plans in anything related to the next generation, it is highly important that the founders stay in their business as they are its undisputed leaders and are capable of resolving differences of opinion that arise in the next generation. Most business establishments have now reached a stage wherein the second or even third generation runs the business, the stage wherein most problems may occur, and therefore it is important to manage businesses correctly in a manner that will prevent tensions and damage to the family’s texture. The function of the founding members is not just to maintain peaceful relationships in the business but also to plan the business future in a reasonable and sensible manner after their retirement. The founding member has to assume legal and administrative responsibility, while being active in the business, and then make operative decisions that will prevent conflicts and future damage to the business.

 

Essential actions that the founding generation has to take before its retirement:

  1. Choosing the next generation, similar to choosing the right managers, their training and strengthening their status already at the time the founders work in the business.
  2. Suitable distribution of the business assets, if possible, by way of separating assets and transferring them to the next generation already during the lifetime of the founding members.
  3. Separation and division by making a will or issuing instructions for the purpose of protecting the business through a will.
  4. Prior division and separation of functions and responsibilities of the different family members in the business.
  5. Performing on-the-job training to ensure success of the future business plan.
  6. Making operative decisions such as bringing an external manager to the business other than family members.

 

Advantages of the family business: despite the potential for conflict, the establishment of a family business also bears advantages: there is no competition to the core values of a close and tight family that is loyal, dedicated and supports its members; strong, undisputed leadership and always committed to realizing the family’s vision. Another advantage is providing financial and occupational security to the next generation while establishing a prosperous family business wherein management policy is more convenient and considerate.

 

In conclusion – it is important to invest planning and thought in anything related to the next generation of family businesses, make careful considerations and weigh all options while knowing the family members who are involved in the process, and in any event ensure that the next generation’s way will be carefully planned as possible, already during the lifetime of the business’ founding members, and in that potential inheritance conflicts among the next generation can be averted.

 

* Eti Sadis Law Firm was established in 1997. Adv. Eti Sadis has many years of experience in conducting complex and sensitive inheritance disputes and provides nationwide representation to inheritors and estates, representation before the Inheritance Registrar and in family courts throughout the country – including estates in Tel Aviv, Ramat Gan, Kfar Shmaryahu, Zichron Yaakov, Binyamina, Karkur, Hadera, Caesarea, Or Akiva, Netanya, Kfar Yona, Herzliya, Ra’anana, Kfar Saba, Hod HaSharon, Petah Tikva and Rosh HaAyin.

Who is entitled to receive the funds accrued in the deceased’s insurance policy? The inheritor or the beneficiary?

 

Most of the public is not aware that moneys set aside in the framework of policy arrangements such as provident funds, life insurance and senior employees insurance, pension funds and study funds, do not constitute part of a deceased’s person estate and are not divided after the death of a person in accordance with the Inheritance Law or in accordance with the deceased’s will.

The funds accrued by a deceased person in policies in his name will be transferred only to persons registered as beneficiaries in a specific policy and subject to the terms set forth in this policy.

 

The legal status of the funds accrued in policies

The public lack of awareness to the legal status of the funds that accrue in policies, and the fact that these funds are not part of the testator’s estate, sometimes causes many inadvertent mistakes when a person who drafts a will to his inheritors and believes that in that manner he divided all his property according to his will, however forgot that at the time of taking out the insurance policy he entered another person as a beneficiary of these funds. Under such circumstances the beneficiaries registered in the policies prevail over the will’s general instructions and the instructions set forth in the Inheritance Law and in that the purpose of upholding the deceased’s wishes is undermined.

 

Taking out an insurance policy before marriage

In the event a person took out an insurance policy before his marriage and before he had any children, and noted in the policy his parents or other relatives as beneficiaries, then, even though in accordance with the provisions set forth by law his wife and children are supposed to inherit him, then if most of his money is invested in the policy then only his beneficiary will enjoy this money.

 

“Taking control” over the testator’s policy

This legal situation is often exploited by entities that are aware that they are not entitled to inherit a certain person, and are interested in “smuggling” funds belonging to that person’s estate in favor of their own interests. For that purpose, they apply pressure on the testator, or convince the testator in another manner, to deposit his money in the policy wherein they are indicated as beneficiaries and in that they bypass inheritance laws and become the actual inheritors of that person.

 

Establishing beneficiaries in the policy

The meaning of depositing the funds of a deceased person in a policy wherein beneficiaries other than the inheritors are specified actually prevents the inheritors from using the legal protection granted to them by the Inheritance Law to protect their rights in the estate. For example, since a policy is not a will in essence, then its cancellation due to the same grounds that allow cancellation of a will cannot be demanded, such as allegations concerning undue influence on the deceased, or allegations concerning complete dependency of the deceased on the inheritors, or allegations concerning misunderstanding the will.

The Inheritance Law, invalidity of the will in the event an inheritor was involved in its making – invalid in policies

This is another important instruction in the Inheritance Law, prescribing that a will whose beneficiaries were involved in its making is null and void, and it does not apply to policies, and therefore it transpires that the involvement of the beneficiary in registering his name in the policy and even exerting influence and pressure on his behalf on the policyholder do not constitute grounds for removing his name as beneficiary in the policy.

 

An example of a legal case under discussion – abuse of provident funds

A classic example of abusing existing legal condition can be seen in the framework of a dispute between inheritors that is heard in the family court in Rishon LeZion in Family Case 2560/07, including abuse of provident funds, when one of the inheritors who asked to prevent the other inheritors from their share in the will exerted unfair pressure on the deceased to transfer most of his liquid cash to different provident funds wherein the name of that inheritor was registered as sole beneficiary while completely ignoring the other inheritors of that deceased.

 

Contradictory instructions by the deceased

Another problematic issue in this context rises when the deceased gives contradictory instructions as to the funds that are invested in policies in his name. For example, when the deceased names certain beneficiaries in his name, however in his will he specifies expressly that the beneficiaries of that policy will be other inheritors and does not report to the company holding the policy about changing the beneficiaries’ rights.

 

Legal precedent: the instructions of a will with respect to the instructions of a provident fund

Lately, the District Court of Jerusalem (Family Appeal 1030/06) made an important step in honoring the deceased’s wishes when it ruled that in the “competition” existing between the instructions set forth in the will and the instructions set forth in the provident fund the instructions set forth in the will prevail although there is no dispute that in these circumstances the inheritor refrained from delivering any notice to the provident fund concerning change of the beneficiaries’ identity.

In that the court preferred to adopt the inheritance-oriented approach that places emphasis on the obligation to uphold the deceased’s wishes, an obligation that was further strengthened after the enactment of Basic Law: Human Dignity and Liberty and transferring most of the weight in the direction of a person’s autonomy. The court notes that as we engage in the interpretation of a will it should be kept in mind that the only interest that is worthy of protection is the testator’s will.

 

Summary

In conclusion, in the Inheritance Law and the different instructions set forth in policies there are many breaches that may be to the detriment of the testator’s wishes. In order to prevent conflicts and uncertainties among a person’s inheritors, it is very important that the testator checks the other policies registered in his name at the time of drafting the will, and make arrangements so that there is no contradiction between the will he drafted and the details of beneficiaries in policies in his name.

Estate Administrator

Appointing an estate administrator

The court may, at the request of an interested party, issue an order for appointment of an estate administrator.

If all related parties agree with the request, it will be submitted to the Inheritance Registrar; if such request as said was submitted, the Inheritance Registrar may appoint an estate administrator upon issuance of an order to appoint an estate administrator.

An individual or a corporation or the Administrator General may be appointed as estate administrators.

Only a person who notified the court or the Inheritance Registrar, as the case may be, about his agreement to the appointment may be appointed as an estate administrator.

In the event the testator designated a person to execute his will or administer his estate, the court or the Inheritance Registrar, as the case may be, shall appoint that person as the estate administrator unless that person is unable or unwilling to accept the appointment or that the court or the Inheritance Registrar is convinced, for special reasons that will be noted, that there are special reasons hindering his appointment.

The estate administrator is obligated, subject to the instructions of the court, to gather the estate assets, administer the estate, pay off the estate debts, and divide the estate among the inheritors according to an inheritance order or an executed will.

The court may, at any time, at the requested of an interested party or following its own initiative, give the administrator instructions in anything related to fulfilling his position.

At the earliest possible convenience and no later than sixty days following his appointment, the estate administrator shall submit to the Administrator General specification of the estate assets and liabilities thereof and shall verify by way of affidavit that to the best of his knowledge the said specification is complete.

In the event that a specification of estate was submitted and then additional debts or assets were discovered, the estate administrator shall submit, within fourteen days following their discovery, an additional specification and shall verify it as said in sub-clause (a).

The Administrator General may, if he saw justified reasons to do so, to extend the period for submission of estate specification or additional specification.

 

The court may instruct –

(1)   That the estate administrator shall submit to the Administrator General, at the time set forth by the court, an assessment of the estate assets prepared for the date set forth by the court;

(2)   That the said assessment shall be prepared by an appraiser or by another person designated by the court.

The estate administrator is obligated to hold or invest the estate funds that are not required for the purpose of the estate’s routine operations for the purpose of keeping the principal and yield; the Minister of Justice may establish in the regulations ways to invest estate funds that will obligate the estate administrator.

In anything related to the estate matters, the estate administrator is obligated to keep accounts, submit to the Administrator General a report as instructed at least once a year and upon termination of his office, and deliver to Administrator General full information at his request.

The office of an estate administrator expires if court approved that the office of the estate administrator terminated and from the date a confirmation in respect whereof was furnished.

Where the court or the Inheritance Registrar appointed two or more estate administrators, the following instructions shall apply, unless otherwise instructed by the court:

The estate administrators are obligated to act consensually; in the event that there are differences of opinion the estate administrators shall act according to the decision of the court;

In an urgent matter each of the estate administrators is entitled to exercise his sole discretion;

An action by an estate administrator that requires consent or approval shall also be valid in the absence of such consent or approval if carried out against a person who did not know and did not have to know that it required consent or approval.

In the event the testator gave instructions in his will with regard to any of the matters that are at the court’s discretion according to this article, the Court shall act in accordance with these instructions unless it was convinced, for reasons that shall be noted, that there were special reasons to deviate from these instructions.

 

Estate liabilities

The estate administrator is entitled to demand that the estate assets shall be delivered to him and that debts that were due to the testator shall be paid up, and he shall be considered for the purpose of this matter as being in an identical position to that of the testator’s.

The estate administrator is obligated to invite the testator’s creditors to notify him in writing about their claims; the invitation shall be published in public and a period of at least three months shall be set for the purpose of delivering the notice.

In order to pay up the estate’s debts the estate administrator shall first use the funds that are kept in the estate. In the event that repayment of debts requires realization of estate assets the estate administrator shall first offer them to the inheritors and shall grant them a reasonable period to purchase them at a price that does not fall below the market price.

Where the testator devised a certain asset to an anonymous person, that asset shall not be realized as long as the estate debts can be paid up out of other estate assets.

The court may issue the estate administrator different instructions out of the instructions set forth in this clause and it may instruct the estate administrator that the sale of the estate assets shall be in such manner that these assets are sold by way of execution or in any other manner that the court determines.

The provisions set forth in this Law shall be without prejudice to the collection of a debt out of the amount that was secured on the eve of his death.

The court may, if it saw a reason to act in this manner, instruct that a debt of the testator’s debts whose repayment date was not yet due, or a conditional debt, be secured or paid up, as the Court instructs, even before its payment date or before the condition was satisfied.

The estate administration expenses, including the fees paid to the estate administrator, shall be incurred by the estate unless the court instructed that they would be incurred, in whole or in part, by another party.

Paying up estate’s debts – priorities

(1)   The expenses involved in the testator’s funeral, burial and headstone, as customary under the circumstances;

(2)   Inheritance order expenses, probate, and estate administration in the event they apply to the estate;

(3)   The debts to the testator owed on the eve of his death and were not canceled at the time of his death (in this Law – the Testator’s Debts) including anything due to his wife according to a Ketubah in the event the amount set forth in the Ketubah does not exceed a reasonable amount;

(4)   Anything due to the testator’s spouse on the grounds of marital relationship except for a Ketubah as provided in paragraph (3), and that is due to a spouse in accordance with the provisions set forth in Spouses (Property Relations) Law 5733-1973, or in accordance with a prenuptial agreement within its meaning in that law;

  1. Estate debts of equal importance shall be paid up according to the ratio of their amounts;
  2. The priority of taxes and other obligatory payments shall be in accordance with the relevant laws;
  3. The estate’s debts shall prevail over alimony disbursed from the estate.

Where there is room to assume that the estate will pay up all the estate’s debts, the estate administrator may pay up debts even before investigating the other debts.

Where there is a concern that the estate shall not suffice for the purpose of paying up all the estate’s debts, the estate administrator shall pay up debts whose repayment the court permitted, in whole or in part or in installments, in accordance with the instructions set forth by the court.

For the purpose of this matter “the estate’s debts” – shall also imply alimony in the estate.

 

In the event it transpired that the estate funds are insufficient to repay all the estate’s debts, the estate administrator shall be obligated to file a petition to grant estate administration order in bankruptcy in accordance with bankruptcy laws, unless the court instructed to liquidate the estate in another manner.

 

Division of the estate among inheritors

After repaying the estate’s debts and disbursing alimony from the estate, the remaining estate shall be divided among the inheritors.

The remaining part of the estate may not be divided as long as the period set forth in the creditors’ invitation did not expire; and the remaining estate may not be divided as long as the rights contingent upon a man’s birth in accordance with Section 3(b) were not set.

The court may, if it saw that the estate allows such circumstances, allow division of a part of the estate even before repayment of the estate’s debts and disbursing alimony from the estate and before expiry of the dates set forth in accordance with subsection (b).

In the event the testator instructed a later date to divide the estate, the instructions set forth in the will shall be followed, unless the court instructed to change the division date.

Whoever on the eve of the testator’s death cohabited with the testator, whether the testator was the apartment owner and whether he leased it, may continue and live in the apartment for three months, and in the event of an inheritor – six months following the testator’s death, and he may use, during this period, the household chattel in the event he used them on the eve of the testator’s death.

Whoever on the eve of the testator’s death cohabited with the testator and at the time his livelihood depended on the testator, may receive his livelihood from the estate a month following the testator’s death.

The rights granted in accordance with this Section shall not obligate a person towards the estate or derogate from the inheritor’s share in the estate; and they shall not add to the instructions set forth in the tenancy protection laws or derogate therefrom, or derogate from the instructions set forth in Section 115.

 

The estate’s assets shall be divided among inheritors according to their value at the time of the division

The assets betterment, yield thereof and anything superseding the assets following the testator’s death up to the estate division – shall belong to the estate and the same shall apply in respect of depreciation of the assets and payments imposed thereof.

In the event that the estate’s parts, following repayment of the estate’s debts and disbursement of alimony, do not suffice, all the parts shall be subtracted according to ratio of their value at the time of the testator’s death, unless the will provided another instruction for the purpose of this matter.

The estate’s assets shall be divided among inheritors according to an agreement between the inheritors or following a court order.

The estate administrator shall offer the inheritors a plan for dividing the assets and shall make efforts to reach consent among inheritors.

In the event that one of the inheritors was absent or not represented by law, the court’s approval shall be granted instead of his consent.

In the absence of consent among inheritors the estate assets shall be divided among them in accordance with a court’s order.

The estate administrator shall present before the court a plan to divide the assets.

In the event the testator specified in his will the manner in which the estate’s assets shall be divided among inheritors, the court shall act in accordance with the testator’s instructions unless it was convinced, for reasons that shall be noted, that there were special reasons to deviate from these instructions;

The estate’s assets shall be divided among inheritors in kind, to the extent possible, while paying attention to the benefit that an anonymous asset may bring to an anonymous inheritor and the emotional value that an anonymous asset has in respect of an anonymous inheritor.

An indivisible asset and an asset that, following its division, would lose a substantial part of its value, including a part of an agricultural unit, craft or trade, and except for agricultural farm in respect of which Section 114 applies – shall be delivered to the inheritor offering the highest price, provided that the price shall not fall below the market price; the amount that the inheritor shall offer shall be recognized on account of anything due to him from the estate. And if the said amount exceeded the amount due, the inheritor shall pay the amount in excess.

In the event that no inheritor agreed to purchase the said asset as specified hereinabove – the said asset shall be sold and the sale proceeds shall be divided.

The court may instruct that the sale shall be executed by way that assets of this kind are sold in execution or in any other manner that the court instructs, and it may set the terms of payment and the terms of payment of the sale fees.

An agricultural farm that is a unit whose division would damage its maintenance as an agricultural farm that may provide for a family’s livelihood – shall be delivered to an inheritor who is willing and capable of maintaining it, and he shall compensate the other inheritors in the event that the value of the farm exceeds what is due to him from the estate.

In the absence of consent among inheritors as to the question who would be willing and capable to maintain the agricultural farm, what assets constitute the agricultural farm, what the value of the agricultural farm is for the purpose of calculating what is due to each inheritor and the manner of compensation to other inheritors, times of payment and ensuring thereof – the court shall decide according to circumstances.

In the event two or more inheritors, including the testator’s spouse, are willing and capable of maintaining the agricultural farm – the testator’s spouse shall prevail over other inheritors.

In the event the inheritor worked in the agricultural farm during the testator’s lifetime or invested his capital in the agricultural farm and did not receive consideration as another person would, this shall be taken into account when setting the said compensation.

An apartment wherein the testator and his spouse lived on the eve of the testator’s death, the testator’s spouse, children and parents who lived in the apartment at the time with the testator, may continue and live in the apartment as the testator’s tenants who received the apartment; the rent, term of lease and terms thereof shall be set in an agreement between the persons staying in the apartment and these inheritors, and in the absence of agreement – by the court.

At the request of the said inheritors, the court may instruct:

(1)   That only persons who do not have another apartment shall continue to live in the apartment;

(2)   That the persons remaining in the apartment shall continue to live in part of the apartment, provided that this part includes the kitchen and service rooms, if any.

 

The right of lease by contract in an apartment that the testator leased for a shorter period and lived therein on the eve of his death, is canceled upon the testator’s death, and is not considered a right in accordance with tenancy protection laws, and shall be delivered to the testator’s spouse, children and parents who cohabited in the same apartment with the testator on the eve of his death.

In the event that a number of inheritors wished to exercise the same right severally, the court shall decide among them.

One asset may not be delivered to a number of inheritors without obtaining their consent.

Submitting estate specification to the court and the Inheritance Registrar for the purpose of the manner of division

The estate administrator shall submit to the Court, within thirty days after dividing the estate, a specification of the estate division and shall verify in an affidavit the integrity of the said specification.

The estate specification shall specify the assets that each of the inheritors received from the estate and shall include an assessment of the value of these assets at the time of their division, if the inheritors did not waive the assessment.

Appointment of a guardian to an incapacitated ward

Abstract: the court will appoint a guardian to a person who is incapacitated and cannot attend to his own matters. The guardian may be appointed to attend to the body of a person due to his physical debility, appointed to attend to a person’s property due to difficulties the person has to attend to his matters. The request for the appointment of a guardian of a ward should be submitted to the Administrator General in addition to an affidavit of consent to be appointed as the guardian, a medical certificate and an affidavit of consent on behalf of first degree relatives.

Key words: guardian, Administrator General, ward, exploiting incapacitated persons, specification, competence, ward’s bank account, guardianship.

When is a person considered as incapacitated and in need of guardianship?

Section 1 of the Legal Capacity and Guardianship Law states that: “any person is granted with rights and obligations from the time of his birth and until his death.”

Section 2 of the Legal Capacity and Guardianship Law states that any person is competent for executing legal actions unless this competence was negated or restricted by law or following a court judgment.

In the absence of contradictory evidence, it shall be presumed that a person is competent to engage in legal actions unless otherwise proven.

The burden of contradicting the presumption of competence lies with the person claiming that the person is legally incompetent.

The appointment of a guardian for a person means that the person is not considered as capable and allowed to attend to his matters independently, however another person is entrusted with attending to that person’s matters, in whole or in part, in order to protect his interests and benefit.

Section 35 of the law states that the court shall appoint as guardian “anyone who, under the circumstances of the matter, appears to be most suited to the ward’s benefit.”

When a person’s judgment is harmed to a point that society sees that the person should be protected against himself – against his actions and omissions originating in faulty judgment of reality – and against other people, who may take advantage of his weak mind and faulty judgment – a guardian shall be appointed to that person.

However, a guardian will not be appointed only in circumstances of faulty judgment – it is possible that a person’s judgment is in order, however his physical condition prevents him from taking care of his body or property on his own – and even in such circumstances a guardian shall be appointed to this person.

A guardian may be appointed to the body of a person – to attend to the physical needs of a person. And a guardian may be appointed to attend to the property of a person – that is to say, to manage his funds and property – under the circumstances of the matter.

Submitting a petition to appoint a guardian for a ward with the Administrator General

A person interested to submit a petition to appoint a guardian of a ward should submit the petition for appointment of a guardian jointly with an affidavit and a medical certificate, and pay fees in an amount that is updated each year. The petition is submitted to the Administrator General in the ward’s residential area.

The petition and the affidavit should specify exactly the ward’s details, his/her medical and/or mental condition, and the reasons in respect of which an appointment of a guardian over the ward is required. The full Petitioner’s details should also be provided (ID. No., full address and telephone). In the event there are other respondents such as additional family members the petition should specify their particulars. It is recommended to sign the ward’s first degree relatives (parents, brothers, children) on a form of consent to appoint a guardian. The petition should specify the full details of family members who disagree with the appointment and/or who disagree to sign the consent form and add them as respondents.

Medical certificates attesting to the ward’s mental and/or medical condition should be enclosed.

The petition for appointment of a guardian should be submitted in 4 copies in addition to another copy for each additional respondent.

 

Guardian’s responsibilities

Guardian’s responsibilities are set forth in the Legal Capacity and Guardianship Law, 5722-1962. The guardian is obligated attend to the ward’s needs, act for the purpose of safeguarding his property, including management and development thereof, and determine his place of residence. The guardian is also authorized to represent the ward. This is under circumstances that the court did not restrict the guardian’s responsibilities.

Obligation to submit specification to the Administrator General

In accordance with the provisions set forth in Section 51 of the Legal Capacity and Guardianship Law, the guardian is obligated to submit a specification of the ward’s assets and liabilities within 30 days following the guardian’s appointment. The specification should be submitted in accordance with the Legal Capacity and Guardianship Law (Procedural Rules and Execution) 5730-1970, and specify all the ward’s assets, rights, obligations and liabilities – as of the appointment date.

The specification should be submitted on a suitable form and verify the said therein in an affidavit.

A printout of the ward’s bank account balances should be enclosed as of the guardian’s appointment date and confirmation with respect to entering a note in the ward’s bank account(s) regarding appointment of the guardian. For the purpose of obtaining the confirmation the guardian is obligated to present to the bank the guardian appointment order that was issued by the court.

If the ward is in possession of a vehicle, a copy of the vehicle license and confirmation regarding entering a note in the licensing bureau concerning appointment of the guardian should be enclosed. For the purpose of obtaining the confirmation the guardian is obligated to furnish the licensing bureau the guardian appointment order issued by the court.

If the ward is a shareholder in a company, a confirmation certifying entry of a note in the company’s books concerning appointment of the garden should be enclosed. For the purpose of obtaining the confirmation the guardian appointment order granted by court should be furnished to the Registrar of Companies.

 

References to other valuables held by the ward should be enclosed, if any, and references with respect to the ward’s routine income and expenses.

In the event the ward holds title in real estate, the guardian shall make arrangements so as to enter a note in the land register on the ward’s assets that a guardian was appointed to the ward.

The guardian is obligated to furnish the land registry office (Tabo), Israel Land Administration and/or the housing company, as the case may be, the original appointment order and enter the appointment where relevant.

An abstract of title should be enclosed to the specification or a confirmation issued by the relevant registry, including registration of a note concerning the appointment of a guardian.

If additional assets belonging to the ward are discovered after submission of the specification, a complementary notice should be delivered to the Administrator General, specifying the additional assets that are discovered, within fourteen days following their discovery.

In general, examination of the specification requires payment of a fee. Payment duties shall be set after examining the specification and a payment voucher shall be sent to you accordingly. After making the payment you should deliver to the Administrator General office the voucher bearing payment stamp as reference that payment was made.

 

The guardian’s obligation to manage accounts in respect of the ward’s assets

In accordance with Section 53 of the Legal Capacity and Guardianship Law and Legal Competence Regulations, the guardian is obligated to keep accounts in anything related to the ward’s financial matters.

As part of managing the ward’s accounts, the guardian shall take the following actions;

  1. Opening a current account in the ward’s name, that will be managed by the guardian. For the purpose of opening the account the guardian should furnish the bank the original appointment order. All of the ward’s moneys shall be deposited to this account and all payments shall be made from this account. To the alternative, in the event the ward has an account in his name, the bank should be furnished with the appointment order so that the bank will add a note that the account is managed by the guardian. All of the ward’s financial transactions should be concentrated in this account.
  2. All references of the transactions performed in the account should be maintained in the reports delivered to the inspection of the Administrator General.

The guardian’s obligation for annual reports

  1. The guardian is obligated to report to the Administrator General at least once a year about his actions, and also upon expiry of his office. The guardian is obligated to deliver the Administrator General full information about all the actions that were performed in the ward’s assets.
  2. Inspection of the periodic or annual report submitted by the guardian requires payment of a fee according to the required report classification. The payment order shall be delivered jointly with the report request.

The following details, inter alia, shall be specified in the guardian’s periodic report, according to the required report type.

  1. Receipts – all receipts must be reported such as wages, pension, allowances, proceeds received from selling the ward’s assets, including real estate, proceeds generated from rent, investments, foreign currency savings plans, and any income of any source.
  2. Payments – all payments paid out from the ward’s funds must be reported such as: hospitalization expenses, subsistence, medical care, pocket money, clothing, rent, taxes, electricity, purchasing special products, travel, attorney fees and so on.
  3. A total balance confirmation in each bank should be enclosed to the report as of the report submission date.
  4. The guardian is obligated to furnish any detail or document that is required by the Administrator General during the report inspection process.

Upon termination of the guardianship period the guardian shall furnish a final report.

Inspection operations are made by professional inspectors on behalf of the Attorney General.

 

Examining the financial reports by a tax advisor

  1. The financial report should be furnished to the tax advisor for the purpose of inspection and preparation according to the list published in the Administrator General website under the tab “supervision over guardians” – full questions and answers about the manner of managing the funds and property, and enclose the following documentation:

-        Balance confirmations and bank statements of all bank accounts including foreign currency.

-        Confirmations in respect of the ward’s income from all sources:

-        Annual confirmations of allowances, pension, rent and so on.

-        Business profit and lost statement.

-        Contracts and receipts in respect of leasing or selling property, payment of alimony.

-        Confirmation of deduction of tax at source from interest/dividend/securities) Form 867 or 867A.

-        References in respect of the ward’s expenses classified according to expense type.

  1. Upon completion of the work by the tax advisor, the guardian shall sign the financial report. The tax advisor shall deliver the report to the Administrator General and the appointed guardian in addition to his opinion as to the status of the financial report and transparency thereof.
  2. The tax advisor shall return the documents to the appointed guardian.
  3. The appointed guardian is obligated to keep all documents and references for a period of at least 7 years for the inspection of the Administrator General.

 

The actions of the guardian in the ward’s assets conditional upon obtaining the court prior approval:

Section 47 of the Legal Capacity and Guardianship Law sets forth the types of actions in the ward’s assets that require the court’s prior approval as specified hereunder:

  1. Sale, transfer or pledge of real estate property such as an apartment, agricultural farm and a lot.
  2. Lease on which tenancy protection laws apply.
  3. A transaction whose force is contingent upon registration in a register kept by law, for example sale of a vehicle.
  4. Giving gifts except for gifts and contributions that are given as customary under the circumstances;
  5. Providing guarantees;
  6. Another action that the court prescribed, in the appointment order or thereafter, as requiring confirmation as said.

Furthermore, in any action entailing the imposition of any liability on the ward such as loan, pledge, guarantee and so on, the court should be approached for the purpose of approving the action before its execution.

Investing the ward’s funds

Pursuant to Regulation 4.A of the Legal Competence and Guardianship Regulations (Ways to Investment Ward’s Funds) 5760-2000, investment of ward’s funds whose value exceeds NIS 500,000 (linked to the index as of 1.1.12 – NIS 637,429) requires the court’s approval.

The guardian is obligated to submit a petition to approve the ways of investment once a year or at a time set forth by the court.

 

Collecting the guardian’s fees

In accordance with the provisions set forth in the Legal Capacity and Guardianship Regulations (Rules concerning Setting Guardians’ Fees) 5749-1988, the guardian is entitled to receive fees for serving in his position.

The fee rates set forth in the said Regulation 5(a) are updated annually according to the rate of increase of the new index in comparison to the basic index.

As of 1.1.12 guardian’s fees, when the ward is hospitalized, total NIS 510 per month. Guardian’s fees when the ward is not hospitalized totals NIS 1,023 per month.

A guardian interested to receive fees should submit a suitable petition to the court, when the respondent to the petition is the Administrator General.

For additional information concerning the guardian’s fees, see Legal Capacity and Guardianship Regulations (Rules concerning Setting Guardians’ Fees) 5749-1988.

Is a ward for whom a guardian was appointed is competent to make a will?

Since there are various reasons to appoint a guardian over a person, and not all reasons are related to faulty understanding on behalf of the ward – then the fact that a guardian was appointed to a ward will not automatically impair the ward’s competence to make a will.

Section 8 of the Legal Capacity and Guardianship Law, 5722-1962 states:

“8. Declaration of disqualification

The court may declare as legally incompetent a person who, due to mental illness or mental defect cannot attend to his own business, at the request of a spouse or a relative or the Attorney General or representative thereof, and after hearing the person or representative thereof.”

A declaration of a person as legally incompetent renders the person legally incompetent and as legally incompetent he lacks the capacity to testate.

That is to say, it does not suffice that a person is dependent to become incompetent to make a will – the person must be declared as legally incompetent.

If a dependent person was not declared as legally incompetent, the reasons and the circumstances that led to the appointment of the guardian should be examined (for example, whether the guardian was for property or body) and the dependent’s condition at the time, for the purpose of finding whether he was capable of understanding the will and was competent to draft a will.

This investigation of the dependent may be executed by review of the relevant documents in the guardianship case, review of relevant medical documentation and review of documents related to social entities such as welfare officials, social workers and National Insurance Institute documents.

 

For example, in a Judgment delivered on 2.8.07 in Estate Case 3990/02 in the matter of the estate of the late S.Sh. in the family court in Haifa before the Honorable Justice Ela Meiras, the case that was heard concerned a condition in which a guardian was appointed to an elderly woman not in light of decrease in her cognitive ability or mental incapacity but due to the need to protect her from abuse by persons on whom she depended.

In Estate Case 3990/02 the Court relied on reports submitted by welfare officials and social workers who talked with the deceased and who were impressed following the conversation with her that she was in possession of mental faculties and requested protection against persons wishing to take over her property.

In conclusion – the policy adopted by the court is not that any person who was recognized as dependent is also legally incompetent. A person for whom a guardian was appointed in light of his inability to attend to his own matters is not necessarily legally incompetent. A person for whom a guardian was appointed in light of his inability to attend to his own matters, is not legally competent. A dependent person who was not declared legally incompetent, his competence was not limited to legal actions in accordance with the Legal Capacity and Guardianship Law.

 

* Eti Sadis Law Firm was established in 1997. Adv. Eti Sadis has many years of experience in conducting complex and sensitive inheritance disputes and provides nationwide representation to inheritors and estates, representation before the Inheritance Registrar and in family courts throughout the country – including estates in Tel Aviv, Ramat Gan, Kfar Shmaryahu, Zichron Yaakov, Binyamina, Karkur, Hadera, Caesarea, Or Akiva, Netanya, Kfar Yona, Herzliya, Ra’anana, Kfar Saba, Hod HaSharon, Petah Tikva and Rosh HaAyin.

What is a family company? When is it beneficial to use a family company?

There is a special taxation system in Israel to companies comprising of shareholders who are first degree relatives.

A “family company” is defined as follows: a company that consists of any of the following family members: spouse, brother, sister, parent, parents of a parent, offspring and offspring’s spouse, and the spouse of any of the above.

The principal meaning of a “family” company concerns its classification by the tax authorities as a separate legal entity. However, its gains or losses are considered as the gain or loss of the company’s controlling shareholder who is considered as the “representative assessee.”

The family company will start being considered as a family company following its request, furnished to the Assessing Officer no later than one month before the start of the tax year, and in the event the company was incorporated lately it has to submit an application to be considered a family company three months following its incorporation. The consent of the party with the highest share in the company’s earnings should be enclosed to the application to serve as “representative assessee” as said.

The “representative assessee” also known as “assessed member” represents the company and is taxed on the company’s income before the tax authorities.

The tax on the company’s income will be calculated according to tax rates imposed on the principal shareholder as a “single” and not company shareholder, and this also allows offsetting individual losses of the “representative assessee” even though this is a company.

Except for taxation, a family company is a limited liability company and a legal entity that can institute legal action and be the subject of legal action.

Different than a regular company that is not taxed on a dividend received from subsidiaries, a family company will pay tax on a dividend as if the dividend was received by a private person.

If a shareholder in a family company sells part of his shares to a person who is not defined as a “relative,” the company’s status as a family company will expire as of the beginning of the tax year.

 

Tax planning with a family company

The family company is entitled to decide, until the date of submission of the annual reports in respect of a certain tax year, that it ceases to function as a family company starting from that tax year, and in such event “a company that ceased to be an entitled family company cannot request to become an entitled company before termination of three tax years from the year it ceased to be entitled.”

You should carefully consider whether it is worthwhile that your company will be considered a family company in accordance with the income tax laws since a family company also has disadvantages in the area of taxation. For example, if the family company is interested in investing in equipment or assets, it cannot use undivided profits for the purpose of investing in equipment or assets and later on it will pay full marginal tax as applicable to the representative assessee, that is to say the assessee will pay 48% tax if a high marginal tax applies to the assessee, and not 29% companies tax as applicable to companies.

 

The future concept: “transparent company”

In fact, Section 64A is expected to be repealed when the regulations by virtue of Section 64A1 concerning a transparent company will come into force. Section 64A1, referring to a transparent company,  is already included in the Income Tax Ordinance however its application is delayed due to failure to enact regulations on the matter by the Minister of Finance.

A transparent company is an arrangement that exists in many western countries including the U.S.A. and is meant to replace the family company status.

 

* Eti Sadis Law Firm was established in 1997. Adv. Eti Sadis has many years of experience in conducting complex and sensitive inheritance disputes and provides nationwide representation to inheritors and estates, representation before the Inheritance Registrar and in family courts throughout the country – including estates in Tel Aviv, Ramat Gan, Kfar Shmaryahu, Zichron Yaakov, Binyamina, Karkur, Hadera, Caesarea, Or Akiva, Netanya, Kfar Yona, Herzliya, Ra’anana, Kfar Saba, Hod HaSharon, Petah Tikva and Rosh HaAyin.

Prohibition on the inheritor’s interference in a will made in his favor

Section 35 of the Inheritance Law prescribes that a will that entitles its maker or witness thereof or took part in its making in any other manner, and the instructions set forth of a will entitling the spouse of any of the above – is null and void.

Section 35 of the Law prescribes absolute presumption that cannot be refuted according to which the circumstances specified therein suffice in order to render the will made in favor of the beneficiary null and void.

The law creates an absolute assumption that whoever took part in making the will had undue influence on the testator. This presumption cannot be refuted not even by presenting evidence that demonstrates that other stages in the making of the will were free from flaws. The meaning is that if a beneficiary in a will took part in its making, there is no force to the instructions entitling him – even if the instruction was a genuine instruction. (Civil Appeal 6486/98 Mofak Butu v. Sammy Butu rulings 54(1) 19, 31-32 (Justice Rivlin). The expression

In Civil Appeal 529/69 Rosenheuser v. Sidney Cohen HCJ Rulings 24(2), 93, 97 the Court explains the rationale underlying the total disqualification of a will that was made following the intervention of its principal beneficiary:

“The disqualification is due to the concern that these people (the witness or anyone who took part in its making) influenced the testator in an unfair manner or deceived him. The law does not grant these people the opportunity to remove from themselves this concern or suspicion; and no testimony, not even the most reliable one given to the court proving that the instruction was following the testator’s free will and initiative does not render the instruction valid.”

Hence, this is an irrefutable assumption according to which a person who acted, as specified in the said Section 35, as if he exerted undue influence on the testator and there is no obligation imposed on a person claiming that there was undue influence to present evidence as to the existence of undue influence (see Civil Appeal 99/86 Matityahu Zaida v. Rika-Rivka Zaida Rulings 40(3), 105, 107-108 (1986).

In Civil Appeal 433/77 Harari v. Harari, Rulings 34(1) 779, Justice Barak ruled that taking part in the making of a will does not commence at the stage that the will is drafted. Justice Barak maintained that “this is a flexible expression whose content is determined by the special circumstances of each instance. Naturally, it is not determined according to fixed criteria.”

The criterion set by Justice Barak to determine the degree of involvement in the making of the will is the “common sense” criterion (see Civil Appeal 851/79 Bendel v. Bendel Rulings 35(3)109). When the question whether the beneficiary took part in the making of a will should be reviewed in respect of each specific case and circumstances thereof, and in light of the degree of intensity and severity of the involvement of the beneficiary in the making of the will. (Civil Appeal 7506/95 Swartz v. Beit Ulpana Ben Aharon and Israel, Rulings 50(2) 215, 227-228 (Honorable Justice Rivlin); Civil Appeal 148/96 Bakshi v. Salman, Rulings 53(1) 843, 847 (Vice President Levin).

 

The aggregate circumstances to prove the involvement of a beneficiary resulting in disqualification of a will

In accordance with case law precedent, in Civil Appeal 5869/03 Nilli Hermon v. Binyamin Golob, the Honorable Justice Rubinstein ruled that the accumulation of a number of circumstances, events and connections that each in itself may not have resulted in claiming that a beneficiary was involved in the making of a will, may, jointly and in totality, give rise to the improper involvement in the making of the will.

An example of circumstances that each, separately, does not prove involvement however their accumulation gives rise to prohibited involvement:

The identity of the witnesses of the will: when the witnesses are also the inheritors or acquaintances of the principal inheritors in the will there is a concern of the inheritor’s unlawful involvement in the will.

Testator’s incapacity: if the deceased’s medical condition did not allow the testator to exercise judgment both in terms of the decision to write a will and the decision concerning the content of the will and there is a concern that the inheritor was involved and performed these actions in his place.

The identity of the beneficiaries of the will: the fact that the inheritor is the principal beneficiary in the will.

The testator’s dependence on the principal beneficiary: the testator’s dependence on the principal beneficiary of his will.

The language of the will and its wording: there are circumstances wherein the language of the will attests to the involvement of its principal beneficiary in its making.

In conclusion, there may be situations in which the circumstances of the matter and the dynamic of the relationships among all the parties can point to the involvement of a beneficiary in the making of a will that may result in disqualification and cancellation of the will.

Undue influence on the testator and absolute dependence of the testator on the beneficiary of his will

The four criteria to examine undue influence and dependence of the testator on the beneficiary are as follows:

(Additional Civil Hearing) 1516/95 – Rina Marom v. the Attorney General, HCJ Rulings 98(2), 1831, 1835 (1998):

First criterion – “dependence and independence”

The basic criterion for deciding whether dependence exists and what its scope is, is independence. This is a criterion based on proportionality and is contingent on the opposition that inheres in the terms “dependence” and “independence.” The question that the court asks is whether at the relevant time of making the will the testator was “independent” – physically and mentally-consciously – and to what degree? To the extent that testator was less independent, according to which criterion will the tendency to assume dependence strengthen?

The question whether the testator was independent should be indeed examined during a given period, however it is of no lees importance to establish what the testator’s condition was at the time of making the will.

In Additional Civil Appeal 1516/95– Rina Marom v. the Attorney General, HCJ Rulings 98(2), 1831, 1848 (1998) it was decided that:

“When examining allegations concerning undue influence evidence concerning the testator’s mental and health condition is of paramount importance; note well: this is not an examination of the testator’s competence to draft a will. The testator’s mental and health condition is highly important even if the testator was competent, and from this perspective, to make a will. Indeed, the testator’s health and mental condition may be important for the purpose of deciding whether the testator was prone to act under influence, that would make him devise his property contrary to his true wishes.

This information may be of paramount importance when deciding whether the testator had genuine will to devise his property, which was manifested in the will under discussion. This information may point to the testator’s degree of dependence on other persons, due to which the testator lost the effective capacity to realize his wishes, as opposed to the other persons’ wishes. Due to these considerations, it was ruled that the testator’s feeble mental and physical state:

“Mandates extreme care when their independent will as testators is examined. Even though this situation in itself does not negate the deceased’s capacity to testate…then it serves as a cautionary sign with respect to the possibility of being under undue influence…”

In Ruling 1516/95– Rina Marom v. the Attorney General, HCJ Rulings 98(2), 1831, 1848 (1998) it was ruled that according to this approach, significant weight was attributed to the testator’s severe depression and his severe alcohol addiction at the time the will was made, as the court decided not to execute the will (see Civil Appeal 2622/90 Shani v. Lermer. Rulings 47(191 (1)).

Similarly, the will of a person was not executed in light of, among other things, his difficulties to function physically and attend to his needs due to his age; a person disconnected from anything that is not in the purview of his immediate needs; a person in a state of indifference and depression; and a person’s inability to be responsible for actions that exceed minimal satisfaction of every day needs (Civil Appeal 1750/90 Aaronson v. Aaronson, rulings 46(336(1)).

 

Second criterion – dependence and assistance:

Where it transpires that the testator was not independent and consequently needed the assistance of another person, there is a need to examine whether the connection maintained between himself and the beneficiary was based upon the provision of assistance that the testator required.

In the event that the beneficiary assisted the testator to overcome his difficulties and disabilities, the court will lean in the direction of ruling that testator depended on the beneficiary. There is special importance, in this context, whether the beneficiary was the only one who assisted the testator in all his needs since the assistance of one person may place the testator in circumstances of absolute dependence of a person providing his assistance. Such circumstances may give rise to a consideration that supports the presumption of undue influence.

 

Third criterion – the testator’s connections with others and the lack of reasons for their disinheritance

As the testator is secluded from the world his dependence on the beneficiary increases, and therefore for the purpose of deciding on the question of dependence it makes little difference what caused the testator’s seclusion, however the seclusion itself is the determining factor.

 

Fourth criterion – circumstances of making the will:

Even if the beneficiary’s involvement does not amount to participating in the making of the will, pursuant to Section 35 of the Inheritance Law, then in undue influence criteria this involvement constitutes prima facie evidence and presumption of undue influence exerted on the testator.

The right to receive alimony from the estate

The rights of the testator’s relatives to receive alimony are established in the Inheritance Law and are not contingent upon the testator’s will. Furthermore, the testator cannot instruct in his will that his relatives will not receive alimony from his estate.

The right to alimony derives both from the religion of each person and Israeli law.

Israeli law prescribes that relatives who are entitled to receive alimony out of the testator’s estate are the testator’s spouse, children or parents and a minor, a dependent or a needy person who are dependent upon the testator.

 

The spouse’s right to alimony

The testator’s spouse, who is in need of alimony, may receive alimony from the estate during his/her entire widowhood period. However, the law prescribes that the court may grant a one-time grant to a testator’s widow who is remarried when the court is of the opinion that this is the appropriate thing to do under the circumstances of the matter. In such circumstances the law prescribes that the court should take into account whether the testator has children whose rights should be protected.

It is important to know that in circumstances that due to religious considerations the court or the religious court rules that a woman may not receive alimony during the testator’s lifetime, the wife will not be entitled to receive alimony from the estate.

 

Rights of the testator’s children to receive alimony

The testator’s children are entitled to receive alimony from the estate until they are 18 years old. If the testator has children who are disabled, mental patients or mentally retarded, these children will be entitled to receive alimony as long as they are in this condition. In addition, the court may, if it found that this would be fit under the circumstances of the matter, rule alimony for an adult child who is not disabled or a mental patient until the child is 23 years old.

It should be noted that even a testator’s child who was born after the testator’s death, or a child born out of wedlock, or an adopted child and a testator’s grandson who was orphaned and for whose livelihood the testator was responsible and his parents are incapable of providing for him, may receive alimony from the estate.

 

The rights of the testator’s parents for alimony

If the testator has parents who, on the eve of his death he provided for, they will be entitled to receive alimony from the estate throughout their lifetime.

 

Alimony amount

In the same manner that the right for alimony from a parent during the parent’s lifetime is contingent upon his financial ability and the standard of living to which family members became accustomed, then when the testator dies the court establishes the scope of alimony, its amount, and period of payment according to the special circumstances of the testator and the party in need.

The law leaves this matter to the court’s full discretion and only sets general instructions as to the manner of establishing the amount of alimony provided to the party in need. The court should examine the value of the testator’s estate and the right of the person receiving the alimony to receive a part in the estate; the court will also take into account the testator’s standard of living and the standard of living of the person entitled to receive alimony, as well as his property and income.

 

The right of the wife to receive the amount set forth in the Ketubah from the estate

The Ketubah is a deed signed by the husband prior to the nuptial ceremony in the framework of which the husband undertakes to pay a certain amount to the wife upon dissolution of the marriage. The marriage may dissolve only upon the divorce of the parties, and also upon the husband’s death.

Many women are not aware of their right to receive the amount indicated in the Ketubah out of the estate left by their husband and it is very important that the wife will ensure whether on the eve of her husband’s death she was still entitled to receive the Ketubah amount from her husband.

In the event the answer is positive, the wife has to approach the court and demand to receive payment in the amount indicated in her Ketubah from the estate.

Cancellation of a discriminatory will

You will probably find that you were excluded from the will of a relative after his death. This discovery is sometimes very painful since in most cases these are first degree relatives and the harm is not just financial but also emotional.

At this stage you cannot argue with the testator who died and “come to terms” with him or convince him that he made a mistake and you have to face directly the inheritors according to the will.

No less worse are the cases in which you are suspicious or that you know that the will that discriminated against you was made under circumstances that impaired the testator’s free will such as duress, undue influence on behalf of the inheritors or taking advantage of the testator on their behalf.

Now you are obligated to find legal ways to change this situation and add your name of the list of inheritors.

 

The decision to institute a legal process in connection with the will under dispute mostly gives rise to personal disputes among inheritors, who are mostly relatives, and this decision is far from being easy. Even when you know that you are right, and that the decision is mostly affected by the complexity of family relations.

 

At the same time, there is the feeling that you were unjustly disadvantaged especially when you know that the will was drafted contrary to the testator’s will while taking advantage his weakness or medical condition.

You have to make the decision whether to institute legal proceedings to revoke a will after you established your chances to win this claim and the influence this decision will have on your relations with other family members.

If you choose to receive legal counseling, it is possible that an advocate will be able to help you find legal flaws in the process of making the will, or its drafting, that will result in its partial or full revocation.

Concurrently the advocate will act for the purpose of claiming your rights that are not contingent on the will, if any (such as rights by virtue of a relationship, sharing, alimony).

It is recommended to hire the services of an advocate who specializes in different aspects of family law together with, and not just exclusively, inheritance law, to examine whether there is a legal way to “attack” the “discriminatory” will or to “salvage” some of the testator’s property by “taking him out of the will” and not just by revoking the will directly.

It is no less important that you make arrangements and notify the advocate representing you about the nature and complexity of the relationships maintained between you and the other inheritors. These details will help your advocate both in terms of the “psychology” involved in handling the case and his sensitive and cautious conduct so as to cause minimal damage to the family texture.