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.

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