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.

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