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.

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