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.

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