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Rules for making a will

Who is competent to write a will?

A necessary condition for the validity of a will is that the will was made by a person who is legally competent to testate through the will. A “competent” person means an adult, sane and sound individual who understands the implications of his actions. A minor or a person declared as legally incompetent or as a dependent person or another person who is incapable of telling the “nature of the will” such as a person suffering from retardation or a severe mental disease or from advanced stages of Alzheimer’s disease that diminish his mental capacity – may be considered as incompetent to make a will and there is a concern that his will be revoked by the court and his will may not be realized after his death.

It should be noted that not in any event wherein the testator suffers from a mental disease or Alzheimer’s disease his right to make a will is negated. Courts tend to make distinctions between different levels of mental soundness and in a series of judgments it was ruled that when a person’s disease did not unreasonably harm his free will and judgment then his will is considered valid and will be honored after his death.

That is to say, each time the court is required to examine whether a person was legally competent at the time he signed his will, the specific circumstances of that person, including the degree of his illness at the specific time of signing the will, soundness degree and his ability to understand the significance of the will at the time of signing it.

 

What can you write in a will?

Anything you want – almost. The law ascribes paramount importance to the testator’s free and personal expression and that no duress, threat, force or undue influence is exerted on the testator. If there is a concern that a person’s will was made against his free will – the court is authorized to declare the will null and void.

 

Can an undertaking be made in a contract as to the content of a will?

A contractual obligation of a person towards others, before his death, to make a specific will, or modify or cancel it or not to make any will is an illegal and invalid undertaking.

A written undertaking made by a person towards inheritors not to change his will, shall also be null and void.

 

What is a person prohibited from writing in a will?

Statements negating the rights of a certain person in your estate cannot be incorporated in a will, for example: “Danny will not inherit me.” This kind of an instruction in a will is considered to be an invalid instruction. If, at the same time, you are not interested that a certain person will inherit you, advocates who specialize in inheritance law will know how to make a will that will guarantee your will. A will cannot state that another person will be authorized to decide how to distribute your estate following your death and this instruction is also null and void.

Ambiguous and unclear instructions may also be canceled by the court unless the court rules that these instructions are moot.

The testator cannot also testate in his will that another person will decide how his property will be distributed following his death. If such instructions are specified in a will they are null and void and may not be executed.

 

Who is entitled to sign in our name and on our behalf on our will?

No one. In order to ensure that the content of the will indeed expresses the testator’s free will the law requires the testator to personally make the will. The testator cannot, for example, send a representative on his behalf to sign the will in his name.

 

Can I change my mind and cancel my will?

Yes. As long as you are mentally sound and understand the implications of your actions you may revoke your old will and make a new one. Even if you change your mind dozens of times – you are allowed to do so as long as you are alive.

In principle, your newest and latest will which you signed is your decisive and valid will.

 

Who am I entitled to testate my property?

You may testate your property to anyone you wish starting with your children and grandchildren and ending with the Society for Prevention of Cruelty to Animals or the Association for the Wellbeing of Israel’s Soldiers, or any other worthy cause you believe in.

 

How can I make a will that is suited to my special circumstances?

It is very important that your will expresses your unique life story and your special relations with your family members and relatives. Each of us has a different personality, a different outlook, different principles and values that shaped our life, and special relationships with different family members.

Even the property we accumulated during our lifetime varies from one person to the other. Some acquire modest belongings however with significant sentimental value, and some acquire a fortune during their lifetime. Property may be by way of money, savings, real estate (apartments, offices), factories, businesses, shares, bonds, agricultural farms, vehicles and so on. Property can also include art collections, expensive jewelry, special furniture and even our personal clothes and belongings.

Our unique life story is expressed through the property we accumulated during our lifetime and the people who were close to us. In the same manner that our life story is different than other people’s life story, the estate of each person is different. For this reason it is important to draft our will in a unique manner that expresses our intimate wishes and thoughts while taking into account the complexity of our familial status, as well as the status of our property and our belongings.

Avoid from using simple straightforward sentences in your will, based upon “readymade” sentences found in a cookbook, and emphasize the uniqueness and complexity of your individual situation.

An advocate specializing in inheritance law will ensure, prior to making your will, to study your life story, the “main characters” in your life who are most significant to you and the scope and structure of the property you own, and will assist you to make a will that will best express your intention and will ensure that your free will is executed after your death.

 

How can I prevent revocation of my will after my death?

The legal reasons in respect of which the court may instruct to revoke a will after the testator’s death are varied and complex and cannot be fully addressed in this page. However, you can significantly reduce the “risk” that your will will be revoked after your death if you take the following actions:

  1. Make sure with your advocate that the will is written and made according to the requirements set forth by the law. For example, ensure that all material details in the will such as date, testator’s details, inheritors’ details and estate details are specified according to the requirements set forth by law and in court judgments.
  2. Avoid from writing a moot, unclear or impractical will. You must ensure that the language of the will and its content are clear and unambiguous and can be executed after your death.
  3. Avoid from using negative statements. Such as “Yossi will not inherit a thing” and so on, since negative instructions in a will are invalid.
  4. Make sure to include your motives and the conditions you require to be satisfied in the will. Explain the family and financial background. This will attest to your soundness and your understanding of your surroundings and will create an impression that this will was made by you while you were legally competent to make a will.
  5. Make sure that there are no medical concerns that you will be declared as incompetent to make a will. Consult with the family doctor and an advocate concerning the ways you can prove that you were sound and competent.
  6. Make sure to receive a medical opinion. If you suffer from a disease such as Alzheimer’s or a mental disease or another chronic disease but still feel that you are capable of expressing your free will, make sure to obtain a medical opinion signed by a professional medical practitioner specializing in your condition, that certifies your medical condition and your competence at the closest time before making the will.
  7. It is important that the opinion is updated as of the date of making the will. Remember – a medical confirmation attesting to your condition before or after making the will may raise problems and questions in the future with respect to your medical, mental and cognitive condition at the time of making the will. It is important that the opinion is concrete and refers to the date of making the will.
  8. When making a written will, ensure that the witnesses certifying your will with their signatures talk to you to receive an impression as to your soundness, since these witnesses will serve as key witnesses in the event that there is an attempt to revoke your will.
  9. If you have property that cannot be divided among inheritors, such as a piece of jewelry with sentimental value, make sure to specify to which inheritor you wish to devise this specific property.
  10. If you are concerned that your will will be destroyed by any of your relatives after your death, make sure to deposit an original copy of your will with an entity that you trust, such as your advocate or in court and instruct that entity to notify about execution of the will after your death. Make sure that the relatives you trust will be aware that the will is kept by the court or an advocate.

Medical, cognitive, psychiatric or mental incompetence of the testator

The rule of thumb is that any person is entitled to rights and duties following his birth and until his death, and any person is competent to perform legal actions including the making of a will unless this competence was denied or limited by law or following a court judgment, as specified in Sections 1 and 2 of the Legal Capacity and Guardianship Law, 5722-1962.

Section 26 of the Inheritance Law prescribes as follows:

“A will made by a minor or anyone declared as legally incompetent or made at the time that the testator was not capable of telling the nature of the will – is null and void.”

The status of a minor or legal incompetence results in invalidation of the will, even if the minor and/or the legally incompetent person can distinguish the nature of the will. The purpose of this Section is to protect a minor and/or a legally incompetent person from mistaken considerations deriving from pressure and undue influence.

Case law precedent developed the criteria to determine whether a person is competent to testate (Civil Appeal 160/80 Bendel v. Bendel HCJ Rulings 35(3) 101):

  1. A.    The testator’s capacity to understand the nature of the will;
  2. B.     The testator’s awareness to the fact that he makes a will;
  3. C.    His knowledge about the extent of his property and the inheritors’ identity;
  4. D.    His awareness of the impact the will have on his inheritors;

 

“The most important aspect is the capacity of a person to adequately judge his surroundings, his ability to establish intent and will; and finally his ability and capacity to direct his conduct according to that reality and according to that intent and will. Competence shall be limited where a person’s judgment is diminished to such degree that society sees a need to protect that person against himself – against his actions and omissions stemming from faulty judgment of reality and against other people, who may take advantage of his weak mind and faulty judgment” (Beanstock Judgment, Honorable Justice Cheshin).

Judgment further determined that the testator has to be of sound mind and interpret correctly his surroundings, when his mind is free from pressure, delusions and illusions.

“It is a case law, and a case law that is relevant in the matter at hand – that delusions are not grounded in reality. However, if there is any evidence and even the weakest piece of evidence that may lead to a thought about the existence of any reality, we shall not consider these thoughts as delusions.” See Civil Appeal 1212/91 Libi (ibid).

 

The importance of time in the context incompetence: in order to prove claims concerning mental and physical condition medical or other opinion should be provided, according to which the party objecting to the will has to prove that the testator was unable to tell the nature of the will. The evidence should also relate to the time of making the will. Therefore, a will made at the time the testator was able to tell its nature will be valid even if this ability was taken from the testator at a later time, and even if it was proven that before making the will he was unable to discern its nature.

This becomes even more complicated at the onset of diseases such as Alzheimer’s disease or dementia – case law determined that where an anonymous person suffered from moments or even periods wherein his mind was not lucid, then if it was proved that he was lucid at the time of making the will, all the more so at the time of actually writing the will, then the court may, and should rule that the anonymous person “was capable of distinguishing the nature of the will” he made.

A party objecting to the execution of the will must prove that the deceased failed to meet the aforementioned criteria at the time of making the will and therefore was incompetent to draft a will.

The common (however not the only) way to prove that the will was written when the deceased was medically, mentally, or cognitively incompetent is to rely on the deceased’s medical history and order the deceased’s medical files from hospitals, doctors, National Insurance Institute, and any other entity that provided care to the deceased.

After gathering all evidence and reviewing all the testator’s medical documentation or any other medical evidence, an expert’s opinion should be made (for example, a psychiatrist, a neurologist or a psychogeriatric doctor) who will determine whether the testator was medically, mentally, and cognitively competent to sign a will.

If the expert determines that the testator’s judgment was flawed at the time of making the will, for example if the testator suffered from Alzheimer’s disease, dementia, impaired memory, disorientation of time and place or impaired soundness deriving from sleep-inducing or numbing drugs and any other impairment of consciousness, reality perception or memory, it is likely to assume that the court will instruct that the testator was legally incompetent and revoke the will, since in such circumstances the deceased is not considered a testator who made a will out of his own free will and resolve.

 

Since the deceased is not present when such claims are heard, the court will allow relying on the deceased’s medical documents. In order to obtain the deceased’s medical documentation a claim should be submitted to remove the deceased’s medical records privacy in the relevant medical institutes.

If the court is convinced that there is justification to remove privacy from medical records it will issue an order instructing medical institutions to deliver the deceased’s medical records to the parties’ review.

In many cases, following a review of the deceased’s medical records, we discover evidence and clues that the deceased was incompetent at the time of making the will, mostly due to cognitive damage deriving from geriatric conditions such as Alzheimer’s or dementia, however also due to mental diseases or disorientation deriving from medications the deceased took.

 

Medical documentation in itself does not suffice to declare the deceased as incompetent to make a will. The court is not a doctor and does not aspire to interpret the meaning of medical documents presented before it. Therefore, another important stage is the preparation of an expert’s opinion, usually a geriatric doctor, psychiatrist, neurologist or another doctor who will be requested by the court the prepare an expert opinion in the framework of which he will give his opinion whether the deceased was competent to make a will at the time of its making.

 

The complexity of an expert’s opinion on the testator’s medical and cognitive condition

The procedure of will revocation that is accomplished by filing an objection to execute a will,  is one of the most complex proceedings in the Israeli legal system since during this proceeding the court is required to determine what the deceased’s genuine will was, without being able to receive the testator’s testimony.

The first question that is asked: if the testator was incompetent to make a will, was there evidence concerning this situation during his lifetime?

Negating the capacity to testate, and especially ex post facto, from a person in whose lifetime there were no doubts about his ability to do so, is not a simple matter, and the burden for contradicting this basic presumption of competence after a person’s death is significantly heavy. It was already ruled that:

“Raising mere doubts is insufficient to meet the burden of proof that lies with the party claiming that a testator was incompetent …” (Civil Appeal 279/87 Rubinowitz v. Kreizel [4] p. 762).

 

For example, declaring that a person was the “mental patient” after his death without being examined by a psychiatrist during his lifetime but while relying on testimonies of people who are not professionals or even while relying on psychiatric opinions that were given post mortem is not an easy task.

The burden of evidence that lies with a person who claims that a person who died was a mental patient while that person can no longer be examined is, as said, significantly heavy.

Interrogating witnesses and reviewing documents for the purpose of establishing the testator’s competence:

An opinion that is based upon the deceased’s medical records is insufficient since it is not based upon a direct examination of the testator. Therefore, such an opinion constitutes only part of the totality of evidence that can be presented before the court for the purpose of demonstrating the testator’s faulty cognitive condition.

To the totality of evidence in respect of the testator’s competence we may also add testimonies of persons who were in the deceased’s surroundings shortly before making the will and certainly the testimony of the person who made the will, drafted it or took part in its making.

We may also learn about the testator’s functioning and competence from witnesses who knew the testator during his lifetime such as relatives, friends and acquaintances, neighbors and caregivers, and even doctors who would testify under oath about his condition (as witnesses and not as experts).

Even letters or handwritten documents that were proven to have been made by the deceased at the relevant time of the will or at about that time can constitute, under certain circumstances, evidence in court attesting to the testator’s competence, whether in terms of the form or style of writing – depending on circumstances.

Expert’s testimony.

 

Review of the language of the will for the purpose of establishing the testator’s competence

Even when reading the language of the will we can learn and receive evidence as to the testator’s competence – the language of the will can demonstrate the extent in which the testator was aware of the circumstances of his life, the names and identity of his family members and inheritors, the size of his property, the fact that he excludes/deprives an inheritor from his will, and even the testator’s sense of reality.

See the words of the Honorable Justice Shaul Shohet in Estate Case 010910/99 in the Tel Aviv Family Court:

“However, the language of the will, a short will in the case under discussion – consisting of a very limited description of the scope of the deceased’s property and refers only to the Plaintiff, the deceased’s daughter who receives the entire estate while the deceased’s other children (in respect of whom even the Plaintiff does not claim that the deceased did maintain connections with any of them) are not referred to in the will at all – raises doubts in itself. Doubts that from the early stages of the proceeding before me fell under the category of “considerations” and nothing else, however now, as I come to the end of the road, and wanting to know where I am and where my doubts are, and I find myself still with doubts.”

The burden of proof concerning incompetence:

The burden of proof for the purpose of proving that the testator was incompetent lies with a party wishing to benefit from the will, that is to say, the party claiming that the testator lacked judgment. The burden of proof is not a mere trifle and for the purpose of meeting this burden raising mere doubts is insufficient.

Today, in light of Basic Law: Human Dignity and Liberty, negating one’s competence to testate, and especially ex post facto, from a person whose competence was not contested during his lifetime, is not a simple matter so that the burden to contradict the basic presumption of competence, after a person’s death, is significantly heavy – however possible by conducting thorough research of all relevant evidence, and using all procedural remedies set forth by law.

Preventive measures to declare incompetence already during the testator’s lifetime

If you want to prove that already in your lifetime you were competent at the time of making your will, and especially if there is a concern that there is a doubt as to your competence after your death, or that any entity may request revocation of your will, I would recommend taking the following actions:

  1. Schedule a meeting with a medical expert, specializing in the medical condition relevant to your condition who will prepare a medical opinion about your condition at the relevant time you make your will.
  2. Document the making of the will using a video camera (medical examination can also be documented with a video camera).
  3. Sign the will’s witnesses on an affidavit stating the circumstances of making the will.
  4. Specify in your will and even in a separate affidavit prepared on the date of the will the circumstances of making your will.
  5. Receive legal and medical consultation that is relevant to your special condition and your special life circumstances.

 

Inheritance by law

Division of the estate when the deceased left no will

In the event the deceased left no will, the law specifies of a complex system of rules as to the possible inheritors and the manner according to which his estate will be distributed among his different inheritors.

 

Spouse’s rights in lawful inheritance

One of the difficult situations that a person experiences after the death of his/her spouse is the realization that he has to share his and spouse’s personal property with other inheritors. Even though the law grants “partial advantage” to spouses according to a very complex set of rules, it is preferable to secure the rights of your spouse in the estate by making an orderly will.

It is important to understand that a person’s right to take part in his spouse’s property, deriving from Israeli family laws, is not prejudiced by virtue of the Inheritance Law however is applied in conjunction with this law.

For example, half of assets such as an apartment or money registered only to the testator’s name, however accumulated during marriage, belong to the living spouse (even though they are registered in the testator’s name only) by virtue of the presumed partnership between spouses or by virtue of the Spouses (Property Relations) Law.

The meaning is that if, for example, spouses have common property then the deceased spouse is owner of half of the property, and can devise this part only. The second half of the property belongs to the living spouse, and will not be distributed among inheritors.

When the testator is your spouse, it is recommended to contact an advocate who specializes, alongside inheritance laws, in family laws since he will be able to assist you to keep your share in the common property, distinguish it from the estate of the deceased spouse, and prevent a situation wherein your share of the property will be mistakenly distributed among the other inheritors.

 

Spouse’s rights in chattel

In principle, the spouse may take from the estate all chattels belonging, as customary and according to circumstances, to the joint household. The term “chattel” includes the spouse’s car, household furniture, kitchenware and any other personal equipment used by the spouse.

 

 

Spouse’s rights in other assets

For the purpose of the remaining estate left by the spouse, such as real estate, shares and so on, division of the estate among inheritors changes subject to the type of inheritors the testator left in addition to the spouse:

a)      In the event the testator left children, grandchildren, great grandchildren or parents, the spouse will inherit half of the remaining estate.

b)      If the testator left brothers or nephews or grandparents, the spouse will inherit two thirds of the remaining estate and all of the testator’s share in the residential apartment, on the condition that the spouse was married to the testator at least 3 years and cohabited with the testator in the apartment specified in the estate and on the condition that the testator has no children.

Common-law spouse’s rights

The Israeli Inheritance Law states that spouses cohabiting in a joint household however are not married to each other, and that at the time of the death of any thereof neither was married to another, the living spouse will inherit the dead spouse as if they were married to each other.

 

The rights of relatives other than the testator’s spouse

After the spouse’s share in the estate is transferred to him/her, the remaining inheritors shall divide the remaining estate by law, when the rule is that the testator’s children inherit the testator and in the event the testator has no children – his parents will inherit him, and in the event there are no parents – his grandparents.

In the event the testator has no relatives who are parents, brothers, grandparents, grandchildren, great-grandchildren, and nephews – the spouse shall solely inherit the entire estate.

 

Who is disqualified as an inheritor?

Whoever was convicted of causing deliberately the testator’s death or attempted to cause his death or whoever was convicted of concealing or destroying the testator’s last will, or forged it or made a claim according to a forged will – will be disqualified and will not be able to be an inheritor.

However, a person who was convicted of attempting to cause the testator’s death and the testator forgave this act, in writing or by making a will in his favor, becomes eligible to inherit the testator again.

Different ways of making a will

The law provides us with one single way through which we can determine what will be done with our property after we die, namely, a will.

The law sets forth four ways of making a will: in handwriting, before witnesses, before an authority or orally, or before a notary.

Handwritten will

A will that is written only in the testator’s handwriting bears a date written in his handwriting and signed by the testator.

The advantage of such will is that it does not have to be printed using a computer, and even those of us who are not familiar with technology can make this will. Its main disadvantage is that it is not prepared by an advocate who verifies the identity of the signatory on the will, and therefore there are many risks of forging wills that allegedly bear your name. In addition, there were numerous instances in which a will that was drafted by the testator itself was not honored by the court due to vague wording, illegible handwriting, double meaning and so on.

Will before witnesses

The testator is obligated to approve the content of a will that can be printed by signing the will in the presence of two witnesses who will validate with their signature, affixed to that will, that the testator declared before them that this is his will and that he signed it out of his own free will. It is important to ensure that the will is validated by the signature of an advocate who authenticates the identity of the testator and the witnesses. The main advantage of this method is that the presence of two witnesses and an advocate prevents forgery of the will. The printed will is also more legible and clear, and therefore it is easier to follow the testator’s wishes and fulfill them. In addition, an advocate assisting in drafting the will can also ensure that the will is drafted in a legal and orderly manner and prevent a situation wherein the will is canceled by the court after the testator’s death.

In terms of reliability and “safety” this is the most recommended method.

The disadvantage of a will made before witnesses lies in the need to find two reliable witnesses who will sign the will and who are not beneficiaries in the will. This can be quickly easily solved since most law firms find neutral and unbiased witnesses who serve as reliable and credible witnesses to the will.

Will before an authority

You may make your will before a Justice of the court or a court registrar. The testator delivers the court a request to approve that this is his will and that his will shall be read before the court, and the court grants its approval that this is his will. The advantage of this type of will is the sense of ceremoniousness and importance that surrounds the making of the will that is manifested in approaching the court.

Furthermore, for the purpose of this method, a notary is in the same status as a Justice.

The disadvantage of this method is in the long and cumbersome process that is involved in approaching legal instances on whose agenda there are numerous cases and therefore a will that could have been made in a number of hours may extend to a number of weeks and even months. In addition, a will before an authority involves payment of different court fees.

Oral will

A sick person on his death bed and anyone who considers himself as facing death under certain circumstances, may testate before two witnesses who hear him and whose words they write in a memorandum and deposit the document with the Inheritance Registrar.

The advantage of this method is that in the event of the quick and unexpected death the testator has a legal and efficient solution to devise his property without investing the time and efforts required in making a written will.

The disadvantage lies in the concern that your words will be misquoted or even falsified by the witnesses and in fact your wishes will not materialize. In addition, this type of will is null and void 30 days after the threat on the testator’s passed, and if the testator stayed alive.

However, the main disadvantage of an oral will stems from the fact that naturally death cannot always be anticipated and the will cannot always be made beforehand.

Why it is important to decide what will happen to our property after we die?

Allegedly, following our death, the question what will happen to our property is not supposed to trouble us at all since it is believed that property cannot be enjoyed after death. However, we are also troubled by the question of the fate of our property after we die.

This stems from a number of reasons. One principal reason is that this property was accumulated after making considerable efforts during our lifetime and it is only natural that we want to ensure which beneficial causes it will serve after we die.

An additional and no less important reason is the natural and sincere care of each person towards the wellbeing of his offspring. During our lifetime we all invest considerable efforts to provide for our children (even if sometimes they do not appreciate it) and we would not want our successors to lack possessions after we die.

Another common reason concerns the desire to prevent conflicts among family members after we die due to conflicts over the division of inheritance. Money and property can “confuse” well established habits and undermine the judgment of many people and many wish to determine in their lifetime the fate of their property after they die in order to preserve family unity and avert from legal conflicts between family members. Such conflicts, after the death of a family member, divided families irrevocably and even divided between brothers who lived peacefully beforehand.

A consideration that is no less important is the testator’s wish to “settle accounts” after his death with respect to the persons and the events that were part of his life. Justice can be done by providing special benefits after we die to a certain family member, whose attitude to us was particularly good, or who helped us in the past financially or otherwise, or who needs most our assistance out of all family members.

Justice can also be manifested in “punishing” a family member who caused a wrong, sorrow or hurt other family members or who neglected the relationship with us and in our opinion does not deserve to enjoy our property.

In short, doing justice after we die will reflect our conduct during our lifetime. This concerns our ability to communicate our very personal and subjective feeling of justice.

In conclusion, the decisions you make today concerning your property with respect to the time following your death may no longer affect you in the afterlife, however these decisions will have a serious effect on the living. The effect of your will not only be financial but also emotional and will also constitute the final statement in the long and complex relationships you maintain with others.

When our relatives learn about our thoughts and feelings towards them by the will, it will be already too late to change anything and therefore the will is the last chance to express our true will and convey to our family members a last and unique message that is eternal and irrevocable.

Forging a will

Section 5 of the Inheritance Law prescribes that a person who was charged with concealing or destroying the last testator’s will, or forged item, or made a claim based upon a forged will – loses his right to inherit the testator.

It should be noted that there are circumstances wherein even the signatures of the witnesses on the will may be forged and not just the testator’s signature.

The way to prove such forgery is to submit a petition to the family court to appoint a graphologist on its behalf to examine forgery claims.

You will always be able to conduct a preliminary inspection by an expert on your behalf in the event of suspended forgery and in this manner you can anticipate in advance the results of the expert appointed by the court; however a personal opinion you ordered cannot constitute evidence in a family court.

Objecting to probate

The legal proceeding concerned with the revocation of a will is known by the name objection to probate, which should be submitted to the Inheritance Registrar within 14 days from the date the petition for grant of probate was furnished to the inheritors.

In the framework of the objection to the probate the opposing party will raise legal and factual claims that justify the revocation of the will discriminating against him.

The causes that justify the revocation or disqualification of a will:

  1. Faulty will – “technical” flaws in the will, in its language, or appearance and failure to comply with basic threshold conditions may result in disqualification of the will. For example, a will that was made not in the presence of two witnesses, a will missing material details such as the testator’s identification details, or the place where the will was made, and a will that is not original (a copy). All of these may result in disqualification of the will due to its faults.
  2. Testator’ incapacity – if it is proven that at the time of making the will the testator was legally incapacitated and was unable to understand the meaning of the will due to his medical, mental or cognitive condition – the family court will instruct revocation of the will.
  3. Duress and threat – since a basic and primary condition for the force of a will is that the will was made out of the testator’s free will then if it is proven in court that the will was made under circumstances that negated the testator’s free will, such as physical threat, extortion, violence and so on – the will shall be revoked.
  4. Undue influence – another important cause for canceling a will is related to the testator’s life circumstances and his dependence on the people close to him at the time of making the will: if it is proven in court that at the time of making the will the beneficiary took advantage of the testator’s weaknesses and exerted undue influence on him in an unfair manner and in bad faith for the purpose of making a will in his favor – then the will shall be revoked.
  5. Undue influence and absolute dependence – in circumstances wherein the testator was significantly dependent upon the beneficiary of the will, in a manner that negated his free will, the court ruled that there was a “presumption” (a basic premise) as to the testator’s being under the beneficiary’s undue influence.
  6. Extortion: in circumstances wherein it is proven that at the relevant time the testator suffered from mental or other weakness that prevented him from exercising his judgment and if it is proven that in addition the beneficiary was aware of that weakness and exploited it in bad faith, and in a manner that aggravated the testator’s conditions in an unreasonable manner – the court may instruct revocation of the will.
  7. When the beneficiary of the will took part in its making (involvement in the making of a will): when the principal beneficiary was involved in the making of the will or was a witness of the will or his spouse was a witness of the will – the instructions set forth in the will in his favor are null and void. Therefore, if you prove that the beneficiary of the will was responsible for its content, was involved in selecting the advocate, was present at the time of its making or executed all of these actions by another person and executed any other action that constitutes significant involvement in making of the will – the will may be revoked in court.
  8. The inheritor’s involvement in the testator’s death: the Inheritance Law prescribes that if an inheritor is convicted in connection with the testator’s death then he shall lose his right to inherit. Note well: a mere suspicion is insufficient and an express conviction of criminal offense by a court is required.
  9. Inheritor’s involvement in the destruction of a will: if it can be proven in court that the inheritor was involved in the destruction of the testator’s previous or later will then that testator will lose his right to inherit by the will and by law.
  10. Bequeathing assets that do not belong to the testator: many times the testator makes mistakes in connection with the scope of his property and he bequeaths in the will an asset that does not belong to him. For example – when an apartment belonging to a married couple is registered on the name of one spouse, this spouse cannot bequeath the entire house since half of the house belongs to the remaining spouse irrespective of inheritance laws. This unawareness to the true scope of the will may, in some conditions, result in the revocation of a will that was made while relying on this mistaken information.
  11. A will made as a result of deceit or misleading: when the will was made by the testator while relying on a mistake of misleading with respect to a certain objective fact – then it can be alleged that in such circumstances the testator was not resolved for the purpose of exerting his free will – and the will shall be revoked.
  12. A will that includes an illegal or immoral condition: for example a will stipulating receipt of the inheritance on the condition that the inheritor divorces his wife or severs connections from other family members – is immoral and the immoral condition will be canceled.

The following are some tips concerning the places where a will can be “attacked”:

  1. Examining the “technical” condition of the will – whether all material details specified by law were noted, whether there is a flaw in the will that renders it faulty, and casts a doubt as to its genuineness.
  2. Examining the testator’s mental capacity – whether the testator’s mental and health condition at the time of drafting the will allowed him to understand the meaning of the content of the will.
  3. Examining the testator’s free will – whether unreasonable pressure was exerted on the testator that deprived him of his free will.
  4. Examining the circumstances of making the will – the place of making the will, time, in the presence of which witnesses the will was made, before which advocate the will was made.
  5. Examining the witnesses to the will – whether the witnesses are beneficiaries in the will.
  6. Examining the content of the will and its clarity – whether the language and content of the will are reasonable and unambiguously clear and can be executed after death. Whether there are negative or moot instructions.
  7. Examining the type of property bequeathed in the will – whether the property was owned by the testator. For example, a testator is not entitled to bequeath his spouse’s share in the common property.
  8. Examining the inheritors’ good faith – whether the inheritors were involved in the testator’s death, whether they acted for the purpose of destroying the will or were engaged in other actions that disqualify them as inheritors.
  9. Examining whether the will is a newer will – a valid newer will cancels prior wills and therefore it is important to ensure that this is the testator’s last and final will. It is recommended to conduct different inspections whether no later will exist.

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.