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.

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