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Revision of Inheritance - Heirs Under Will/Probate from Fri, 03/13/2009 - 01:20

 

Inheritance – Heirs Under Will/Probate
 
 
This section deals with the inheritance process when the person who died left a will. The people who inherit under a will are known as beneficiaries ( heirs under a will ) and the property owned by the person making the will (the testator) is  known as the deceased's estate.
There is also information here on finding out whether someone who died left a will and for applying for probate (an order enforcing a will) so that the deceased's estate can be divided.
 
‘Interested Party’ – Access to National Inheritance Register
 
Question:
 
Who has a right to check and see if an application has already been made for probate of a will after a person has died ?
 
Answer:
 
According to the Inheritance Regulations of 1998 “after the death of a person an interested party is entitled to receive details from the National Inheritance Register relating to the deceased.”
 
If an application has been made for probate – an order to enforce a will – concerning the deceased, this will be recorded on the register.
 
The person wishing to gain access must have details about the person who died – e.g. their full name, I.D. number, address and the date when they died.
 
Probate Is Not Automatic
 
Question:
 
Is probate always granted for a will ?
 
Answer:
 
No ! The Inheritance Registrar or court will only grant probate when it is satisfied that the will is valid – that the testator, the person making it, had the appropriate mental capacity at the time to make a will, and that it represented his/her genuine, last and certain wishes about what should be done with his/her property after his/her death, free of undue influence , trickery or compulsion etc.  Sometimes no opposition is filed and the probate process is straightforward and technical, and in other cases an inheritance battle lasting years can ensure, if opposition is filed, and there are even several competing wills.
 
A will can be upheld in its entirety, or only some of it held to be valid. It can be held completely invalid i.e. cancelled. Where there are two competing wills that were properly made at the time, the later one will invalidate the earlier one, entirely, or partially, depending on the exact content and wording of each.
 
 
Applying For Probate – Who and Where
 
Question:
 
How can a will be enforced in Israel, when the person who made it dies ?
 
Answer:
 
Application should be made for an order (called probate) to enforce the will. This can be done by a beneficiary (someone who inherits under the will ) or an interested person.Normally application for probate is to the Inheritance Registrar, but in certain circumstances, it will be to the family or religious court.
 
Probate in Israel After Probate Abroad
 
Question:
 
If probate has already been obtained for a will overseas, is it still necessary to apply for probate in Israel regarding Israeli property ?
 
Answer:
 
Yes !
 
 
Probate – Definition
 
Question:
 
What is "probate" exactly ?
 
Answer:
 
Probate is a special legal order that declares that a will made by someone who has died is actually valid, in whole or part and is a binding declaration of inheritance rights according to that will. It is a special kind of inheritance order, based on the testator's will, rather than inheritance law, which applies when there is no valid will.
 
No Time Limit on Probate Application
 
Question:
 
Does Israeli law put a time limit on when application has to be made for probate regarding a will ?
 
Answer:
 
No, there is nothing mentioned in the 1965 Inheritance Law or its regulations concerning a deadline within which an application for probate of a will in relation to when the testator died
 
Beneficiary Abroad With Unopened Will
 
Case:
 
I live outside Israel. Many years ago my uncle, who lived in Israel, gave me a sealed copy of his will. He told me he had ‘remembered me'in his will and was giving me the will so that I would not be forgotten and lose out by living abroad.
My uncle has recently died. The will remains unopened, its wax seal intact. Can I open it now and can I claim my inheritance while remaining abroad ?
 
Answer:
 
Yes to both questions ! Firstly, the will can be opened and the beneficiary living abroad can sign a power of attorney at an Israeli Consulate Overseas appointing a lawyer in Israel to apply for probate (an order enforcing the will) on behalf of the beneficiary abroad.
 
 
 
 
Original Will Preferable
 
Question:
 
My brother refuses to give me the original will signed by our father, a widower, who died recently. I want to get the estate divided up. Can I get an order enforcing the will from the Inheritance Registrar if I attach a photocopy of the will which I have ?
 
Answer:
 
No. The Inheritance Registrar will not use his/her powers to issue probate where the original will is not submitted. He/she is almost certain to use his/her powers under the Inheritance Act to transfer the application for probate to the family court, unless a plausible reason is given for the non-submission of the original, and it is obtained from another source and presented to the registrar.
 
In certain instances listed in the act the registrar must transfer an application to the family court eg where formal oppositon to a probate application is lodged. In addition to his/her obligation to transfer such cases, the registrar has discretion to transfer an application for probate whenever he/she sees it right to do so. If a photocopy of a will is submitted instead of the original this is most likely to arouse suspicion and the registrar will almost certainly transfer the application to the family court for the matter to be examined carefully , including the real reason why the original will was not produced. Beneficiaries and other interested persons will have the opportunity to respond and object . This may even prompt someone holding the original to submit it .
 
Probate Without Original Will
 
Question:
 
Can probate be granted if the original will is not produced ?
 
Answer:
 
Yes, it is possible, as an exception, though in principle the original should be produced. The Inheritance Law states that a will – except for a ‘death-bed ‘ one – should be proved by production of the original. However, as an exception this legislation states that it is possible to prove its existence by a copy of the will or secondary evidence in certain circumstances. These are where it is proved that the original (a) has been lost and reasonable attempts to find it have failed or (b) has been destroyed but was not cancelled or (c) is located overseas and bringing it involves great difficulty or is impossible.
 
Only after the court accepts that the original cannot be produced as explained above, may secondary evidence be submitted in support of its existence. The court will then discuss its weight. If it is satisfied by it, it can grant probate.
 
In February 2002 the Tel Aviv Family Court accepted secondary evidence regarding a will, where the original , made in Russia before a Public Notary during the Second World War, was unavailable. It granted probate of the will in which the testator, a Russian, bequeathed real estate located in present -day Israel. In this case two originals were drafted and signed, one remained in the notary’s office abroad, and the other was posted to Israel. The court permitted the will to be proved in another way which it accepted as believable – by the production of a Hebrew translation made from the Russian original by a notary. This was attached to litigation concerning the property submitted in connection with registration of the property in the 1950’s.
 
In its judgment, the court referred to Supreme Court precedent stating that where the original will is lost and there is an application for probate, each case should be decided on according to its individual circumstances and merits.
 
Will Drafted in Israel in English – Hebrew Translation Not Automatically Required
 
Question:
 
If a native English speaker chooses to get a will drawn up in English in Israel, will he, or his surviving relatives, have to go to the expense of getting a Hebrew translation for probate purposes ?
 
Answer:
 
Not as a rule, but only as an exception, and the discretion to order a translation must be reasonably exercised, so it was stated by Jerusalem Family Court in April 2004. The amended Inheritance Regulations of 1998 give English an advantage over other languages; no translation into Hebrew or Arabic of a will drafted in English is required, although the registrar or court dealing with an application for probate has discretion to order such.
 
 
 
Inheritance: Translation of English Will/Document
 
Question:
 
Does a will in English have to be translated into Hebrew before probate can be granted ?
 
Answer:
 
Not in theory according to the Inheritance Regulations – but in practice someone requesting probate on the basis of a will written in English may be asked to provide a translation in Hebrew.
 
In March 2003 the Tel Aviv Family Court was asked to release the deceased’s estate from providing a Hebrew translation of a will written in English, probate for which had already been granted in New York, U.S.A. This was because the requirement for translation was, so it claimed, in contradiction with an amendment to the 1998 Inheritance Regulations which states: “ If a document is submitted to the Inheritance Registrar, or to the court, written in a foreign language, except for the English language, a translation into Hebrew or Arabic will be attached to it, authorized by a notary.”
 
However, the court rejected the application and held that translations of the will and other supporting documents in English – the New York probate order, the document appointing the executor , notices sent to beneficiaries and the deceased’s death certificate- must be provided .
 
It said if no translation is provided there is a great risk of injustice - and this outweighs the cost involved in translation. It called on the Knesset to change the exemption from translation regarding wills and other documention in English.
 
 
 
Foreign Will in English – Translation Probably Required For Probate in Israel
 
Question:
 
My aunt died, leaving me some of her property in Israel, according to a will she made in English, abroad before she made 'aliyah'. In it she appoints some relatives whom she gives very wide powers in relation to the distribution of her property. I want to apply for probate in Israel , but don’t know whether to make a translation.
 
Answer:
 
Although the amended Inheritance Regulations of 1988 put English in a privileged position, and do not require the Inheritance Registrar or the court to automatically ask for a translation of a will drafted in English in every case, where the will is drafted abroad it could contain legal mechanisms which may be contrary to Israeli law, and therefore an authorized Hebrew translation will probably be required.
 
These points were clarified in an estate appeal case dealing with the subject in April 2004. The Jerusalem Family Court dealing with the appeal gave an example of the legal mechanism of “ a general power of appointment” favoured in Anglo-saxon wills drafted abroad. It said such a legal mechanism giving wide-ranging powers regarding the testator’s property after his death is forbidden under the Israeli Inheritance Act of 1965. Accordingly, where the will is in the English language , but drafted abroad, it is most likely that a Hebrew translation authorized by a notary will be required, it said.
 
Probate For Oral Will With Procedural Faults
 
Question:
 
Can probate still be granted for an oral will if the procedures for making and depositing it are not strictly kept ?
 
Answer:
 
Yes. The Inheritance Law of 1965 does lay down strict procedures for the recording of an oral will of someone facing death by two witnesses in a memo and for its deposit with the Inheritance Registrar, both of which should be carried out as soon as possible.
 
However, the legislation also states that the court can uphold an oral will even if there are faults in the process laid down, if it has no doubts about its genuineness.
 
In 2000 an oral will made by a Druze man was upheld by a court even though the two witnesses were late in drafting and signing the memo and depositing it.
 
Probate For Oral Will Rejected
 
Question:
 
How strict are courts in Israel about accepting granting probates for oral wills?
 
Answer:
 
Extremely strict. Israeli courts interpret the provisions regarding the making and validity of oral wills in the Inheritance Act of 1965 very strictly, obeying Supreme Court instructions, due to the potential for financial exploitation .
 
In July 2008 Nazareth Family Court rejected an application by the deceased's daughter to grant probate for an alleged oral will made a few hours before his death. It held that she had failed to prove key preconditions - that the testator was facing his death, both subjectively and objectively, at the relevant time. She had had not brought the requisite independent medical evidence to prove that medically the testator was about to die, the court said. The medical history provided did not relate the deceased's condition on the day/s immediately before death, as is required. While it showed him to be suffering from a number of illnesses, that presumably caused his death, the documentation presented was not sufficient to persuade the court that the doctors thought the deceased was about to die. Furthermore, the court held that the fact that the doctor whom the deceased allegedly saw a few days before his death and allegedly told him of his "death sentence" was not called as a witness led it to the inevitable conclusion that his testimony would not have supported the daughter's case.From the medical record of that visit, there was no indication of suspected imminent death.
 
Inheritance: Expert Opinion on Foreign Law
 
Question:
 
Can the lawyer representing someone applying for probate of a will written abroad provide an expert opinion on foreign law regarding the deceased’s property in Israel ?
 
Answer:
 
No, according to the 1996 Bar Association’s Rules of Ethics because of the risk of a conflict of interest if he is required to testify in court about the opinion.
 
In a case before the Tel Aviv Family Court in March 2003 an application was made for the lawyer representing the deceased’s estate to give an expert opinion regarding the laws of New York State. He claimed the material in question was purely technical and, therefore, he should be permitted to give it himself. The court, however, rejected this argument, saying that under the Interpretation Act the giving of information relating to foreign law was not technical and was a question of fact which had to be proved via expert witnesses. It ordered an independent expert opinion to be submitted.
 
Court Errs in Probate Application Following Cancellation of Order By Consent
 
Question:
 
Can a court considering an application for probate of a will turn the clock back and re-consider the merits of an previously order granted to distribute the deceased’s estate according to law, but which was cancelled by consent ?
 
Answer:
 
No ! In October 2003 the Supreme Court accepted an appeal against a decision by Tel Aviv District Court reinstating an order to divide the deceased’s estate by law even though it had been cancelled by consent. It severely criticized the District Court ,which also threw out the application for probate of a will found later, for misapplying the law.
 
The Supreme Court held that once an order to distribute an estate is cancelled by agreement, the court must look forwards, and concentrate on the application for probate and objection to it. It must not look backwards and re-adjudicate on the cancellation of the order, as it had done so, misapplying the law.
 
Court Frees Beneficiaries of Need To Give Away Testator’s Estate
 
Question:
 
When a court grants probate can it cancel certain instructions in the will and grant probate for only some of the instructions ?
 
Answer:
 
Yes. For example, in May 2003 Tel Aviv Family Court was faced with an application for probate of an unusual written will made before witnesses, and chose not to enforce a controversial instruction. In the will the testator,a widower with no children, left his estate to the daughters of a close friend, but stated that they could give some of the money in his estate to anyone close to his heart if they so decided , adding that they were under no obligation to do so.
 
In its judgment the court referred to the 1965 Inheritance Law which specifically forbad a testator from giving someone absolute power to decide who should inherit, and what. The legislation only allowed a testator to delegate his power in a limited way – by making a restricted choice from named people/a named group/named properties, it said.
 
The court accepted evidence brought by the applicants to show that none of the testator’s family was ‘close to his heart’ , that none of them had visited him for years, nor had attended his funeral. Accordingly, it cancelled the controversial instruction in the will, and granted probate to the rest of the will, so that the applicants inherited all of the estate, without the need to give anything away.
 
Inheritance in Dollars and Not Shekels – Claim Fails
 
Question:
 
If a beneficiary under a will claims that there is a technical mistake in a sum bequeathed to him /her in a will , and an application has already been made for probate, what must he/she do to get the amount he/she thinks is due ?
 
 
Answer:
 
A beneficiary who claims there is a mistake in the sum bequeathed in a will should object to probate, but to succeed in getting the sum due rectified, he/she must prove that the testator really intended to leave him/her what he/she claims. The Inheritance Act of 1965 does provide a mechanism for correcting mistakes in wills but only where the true intentions of the testator can be proved.
 
For example, in March 2004 Tel Aviv Family Court rejected an objection to probate for an addition to a will in which the deceased left one of his daughters 50,000 shekels to renovate her home. She claimed that he really meant dollars. However, the affidavits given by the lawyer who drafted the will, and the controversial handwritten addition dictated by the testator, and the lawyer who witnessed the signing of the will ,clearly stated that the deceased intended the sum to be in shekels. Furthermore, the daughter failed to produce evidence to support her claims and did not call any of the people she claimed had heard the alleged promise by her father to give her $ 50,000 for improvements to her home to testify in her favour.
 

 

 

Inheritance – Heirs Under Will/Probate
 
This section deals with how a will can be enforced – i.e. put into practice after the testator (the person who made it) has died.
 
Applying For Probate – Who and Where
 
Question:
 
How can a will be enforced in Israel, when the person who made it dies ?
 
Answer:
 
Application should be made for an order (called probate) to enforce the will. This can be done by a beneficiary (someone who inherits under the will ) or an interested person.Normally application for probate is to the Inheritance Registrar, but in certain circumstances, it will be to the family or religious court.
 
Probate in Israel After Probate Abroad
 
Question:
 
If probate has already been obtained for a will overseas, is it still necessary to apply for probate in Israel regarding Israeli property ?
 
Answer:
 
Yes !
 
 
Probate – Definition
 
Question:
 
What is "probate" exactly ?
 
Answer:
 
Probate is a special legal order that declares that a will made by someone who has died is actually valid, in whole or part and is a binding declaration of inheritance rights according to that will. It is a special kind of inheritance order, based on the testator's will, rather than inheritance law, which applies when there is no valid will.
 
No Time Limit on Probate Application
 
Question:

Does Israeli law put a time limit on when application has to be made for probate regarding a will ?

Answer:

No, there is nothing mentioned in the 1965 Inheritance Law or its regulations concerning a deadline within which an application for probate of a will in relation to when the testator died

 
Beneficiary Abroad With Unopened Will
 
Case:

I live outside Israel. Many years ago my uncle, who lived in Israel, gave me a sealed copy of his will. He told me he had ‘remembered me'in his will and was giving me the will so that I would not be forgotten and lose out by living abroad.
My uncle has recently died. The will remains unopened, its wax seal intact. Can I open it now and can I claim my inheritance while remaining abroad ?

Answer:

Yes to both questions ! Firstly, the will can be opened and the beneficiary living abroad can sign a power of attorney at an Israeli Consulate Overseas appointing a lawyer in Israel to apply for probate (an order enforcing the will) on behalf of the beneficiary abroad.
 

 
 
 
Original Will Preferable
 
Question:

My brother refuses to give me the original will signed by our father, a widower, who died recently. I want to get the estate divided up. Can I get an order enforcing the will from the Inheritance Registrar if I attach a photocopy of the will which I have ?

Answer:

No. The Inheritance Registrar will not use his/her powers to issue probate where the original will is not submitted. He/she is almost certain to use his/her powers under the Inheritance Act to transfer the application for probate to the family court, unless a plausible reason is given for the non-submission of the original, and it is obtained from another source and presented to the registrar.

In certain instances listed in the act the registrar must transfer an application to the family court eg where formal oppositon to a probate application is lodged. In addition to his/her obligation to transfer such cases, the registrar has discretion to transfer an application for probate whenever he/she sees it right to do so. If a photocopy of a will is submitted instead of the original this is most likely to arouse suspicion and the registrar will almost certainly transfer the application to the family court for the matter to be examined carefully , including the real reason why the original will was not produced. Beneficiaries and other interested persons will have the opportunity to respond and object . This may even prompt someone holding the original to submit it .

 
Probate Without Original Will
 
Question:

Can probate be granted if the original will is not produced ?

Answer:

Yes, it is possible, as an exception, though in principle the original should be produced. The Inheritance Law states that a will – except for a ‘death-bed ‘ one – should be proved by production of the original. However, as an exception this legislation states that it is possible to prove its existence by a copy of the will or secondary evidence in certain circumstances. These are where it is proved that the original (a) has been lost and reasonable attempts to find it have failed or (b) has been destroyed but was not cancelled or (c) is located overseas and bringing it involves great difficulty or is impossible.

Only after the court accepts that the original cannot be produced as explained above, may secondary evidence be submitted in support of its existence. The court will then discuss its weight. If it is satisfied by it, it can grant probate.

In February 2002 the Tel Aviv Family Court accepted secondary evidence regarding a will, where the original , made in Russia before a Public Notary during the Second World War, was unavailable. It granted probate of the will in which the testator, a Russian, bequeathed real estate located in present -day Israel. In this case two originals were drafted and signed, one remained in the notary’s office abroad, and the other was posted to Israel. The court permitted the will to be proved in another way which it accepted as believable – by the production of a Hebrew translation made from the Russian original by a notary. This was attached to litigation concerning the property submitted in connection with registration of the property in the 1950’s.

In its judgment, the court referred to Supreme Court precedent stating that where the original will is lost and there is an application for probate, each case should be decided on according to its individual circumstances and merits.

 
Will Drafted in Israel in English – Hebrew Translation Not Automatically Required
 
Question:

If a native English speaker chooses to get a will drawn up in English in Israel, will he, or his surviving relatives, have to go to the expense of getting a Hebrew translation for probate purposes ?

Answer:

Not as a rule, but only as an exception, and the discretion to order a translation must be reasonably exercised, so it was stated by Jerusalem Family Court in April 2004. The amended Inheritance Regulations of 1998 give English an advantage over other languages; no translation into Hebrew or Arabic of a will drafted in English is required, although the registrar or court dealing with an application for probate has discretion to order such.

 

 
Inheritance: Translation of English Will/Document
 
Question:

Does a will in English have to be translated into Hebrew before probate can be granted ?

Answer:

Not in theory according to the Inheritance Regulations – but in practice someone requesting probate on the basis of a will written in English may be asked to provide a translation in Hebrew.

In March 2003 the Tel Aviv Family Court was asked to release the deceased’s estate from providing a Hebrew translation of a will written in English, probate for which had already been granted in New York, U.S.A. This was because the requirement for translation was, so it claimed, in contradiction with an amendment to the 1998 Inheritance Regulations which states: “ If a document is submitted to the Inheritance Registrar, or to the court, written in a foreign language, except for the English language, a translation into Hebrew or Arabic will be attached to it, authorized by a notary.”

However, the court rejected the application and held that translations of the will and other supporting documents in English – the New York probate order, the document appointing the executor , notices sent to beneficiaries and the deceased’s death certificate- must be provided .

It said if no translation is provided there is a great risk of injustice - and this outweighs the cost involved in translation. It called on the Knesset to change the exemption from translation regarding wills and other documention in English.

 

 
Foreign Will in English – Translation Probably Required For Probate in Israel
 
Question:

My aunt died, leaving me some of her property in Israel, according to a will she made in English, abroad before she made 'aliyah'. In it she appoints some relatives whom she gives very wide powers in relation to the distribution of her property. I want to apply for probate in Israel , but don’t know whether to make a translation.

Answer:

Although the amended Inheritance Regulations of 1988 put English in a privileged position, and do not require the Inheritance Registrar or the court to automatically ask for a translation of a will drafted in English in every case, where the will is drafted abroad it could contain legal mechanisms which may be contrary to Israeli law, and therefore an authorized Hebrew translation will probably be required.

These points were clarified in an estate appeal case dealing with the subject in April 2004. The Jerusalem Family Court dealing with the appeal gave an example of the legal mechanism of “ a general power of appointment” favoured in Anglo-saxon wills drafted abroad. It said such a legal mechanism giving wide-ranging powers regarding the testator’s property after his death is forbidden under the Israeli Inheritance Act of 1965. Accordingly, where the will is in the English language , but drafted abroad, it is most likely that a Hebrew translation authorized by a notary will be required, it said.

 
Probate For Oral Will With Procedural Faults
 
Question:

Can probate still be granted for an oral will if the procedures for making and depositing it are not strictly kept ?

Answer:

Yes. The Inheritance Law of 1965 does lay down strict procedures for the recording of an oral will of someone facing death by two witnesses in a memo and for its deposit with the Inheritance Registrar, both of which should be carried out as soon as possible.

However, the legislation also states that the court can uphold an oral will even if there are faults in the process laid down, if it has no doubts about its genuineness.

In 2000 an oral will made by a Druze man was upheld by a court even though the two witnesses were late in drafting and signing the memo and depositing it.

 
Probate For Oral Will Rejected
 
Question:

How strict are courts in Israel about accepting granting probates for oral wills?

Answer:

Extremely strict. Israeli courts interpret the provisions regarding the making and validity of oral wills in the Inheritance Act of 1965 very strictly, obeying Supreme Court instructions, due to the potential for financial exploitation .

In July 2008 Nazareth Family Court rejected an application by the deceased's daughter to grant probate for an alleged oral will made a few hours before his death. It held that she had failed to prove key preconditions - that the testator was facing his death, both subjectively and objectively, at the relevant time. She had had not brought the requisite independent medical evidence to prove that medically the testator was about to die, the court said. The medical history provided did not relate the deceased's condition on the day/s immediately before death, as is required. While it showed him to be suffering from a number of illnesses, that presumably caused his death, the documentation presented was not sufficient to persuade the court that the doctors thought the deceased was about to die. Furthermore, the court held that the fact that the doctor whom the deceased allegedly saw a few days before his death and allegedly told him of his "death sentence" was not called as a witness led it to the inevitable conclusion that his testimony would not have supported the daughter's case.From the medical record of that visit, there was no indication of suspected imminent death.

 
Inheritance: Expert Opinion on Foreign Law
 
Question:

Can the lawyer representing someone applying for probate of a will written abroad provide an expert opinion on foreign law regarding the deceased’s property in Israel ?

Answer:

No, according to the 1996 Bar Association’s Rules of Ethics because of the risk of a conflict of interest if he is required to testify in court about the opinion.

In a case before the Tel Aviv Family Court in March 2003 an application was made for the lawyer representing the deceased’s estate to give an expert opinion regarding the laws of New York State. He claimed the material in question was purely technical and, therefore, he should be permitted to give it himself. The court, however, rejected this argument, saying that under the Interpretation Act the giving of information relating to foreign law was not technical and was a question of fact which had to be proved via expert witnesses. It ordered an independent expert opinion to be submitted.

 
Court Errs in Probate Application Following Cancellation of Order By Consent
 
Question:

Can a court considering an application for probate of a will turn the clock back and re-consider the merits of an previously order granted to distribute the deceased’s estate according to law, but which was cancelled by consent ?

Answer:

No ! In October 2003 the Supreme Court accepted an appeal against a decision by Tel Aviv District Court reinstating an order to divide the deceased’s estate by law even though it had been cancelled by consent. It severely criticized the District Court ,which also threw out the application for probate of a will found later, for misapplying the law.

The Supreme Court held that once an order to distribute an estate is cancelled by agreement, the court must look forwards, and concentrate on the application for probate and objection to it. It must not look backwards and re-adjudicate on the cancellation of the order, as it had done so, misapplying the law.

 
Court Frees Beneficiaries of Need To Give Away Testator’s Estate
 
Question:

When a court grants probate can it cancel certain instructions in the will and grant probate for only some of the instructions ?

Answer:

Yes. For example, in May 2003 Tel Aviv Family Court was faced with an application for probate of an unusual written will made before witnesses, and chose not to enforce a controversial instruction. In the will the testator,a widower with no children, left his estate to the daughters of a close friend, but stated that they could give some of the money in his estate to anyone close to his heart if they so decided , adding that they were under no obligation to do so.

In its judgment the court referred to the 1965 Inheritance Law which specifically forbad a testator from giving someone absolute power to decide who should inherit, and what. The legislation only allowed a testator to delegate his power in a limited way – by making a restricted choice from named people/a named group/named properties, it said.

The court accepted evidence brought by the applicants to show that none of the testator’s family was ‘close to his heart’ , that none of them had visited him for years, nor had attended his funeral. Accordingly, it cancelled the controversial instruction in the will, and granted probate to the rest of the will, so that the applicants inherited all of the estate, without the need to give anything away.

 
Inheritance in Dollars and Not Shekels – Claim Fails
 
Question:

If a beneficiary under a will claims that there is a technical mistake in a sum bequeathed to him /her in a will , and an application has already been made for probate, what must he/she do to get the amount he/she thinks is due ?

Answer:

A beneficiary who claims there is a mistake in the sum bequeathed in a will should object to probate, but to succeed in getting the sum due rectified, he/she must prove that the testator really intended to leave him/her what he/she claims. The Inheritance Act of 1965 does provide a mechanism for correcting mistakes in wills but only where the true intentions of the testator can be proved.

For example, in March 2004 Tel Aviv Family Court rejected an objection to probate for an addition to a will in which the deceased left one of his daughters 50,000 shekels to renovate her home. She claimed that he really meant dollars. However, the affidavits given by the lawyer who drafted the will, and the controversial handwritten addition dictated by the testator, and the lawyer who witnessed the signing of the will ,clearly stated that the deceased intended the sum to be in shekels. Furthermore, the daughter failed to produce evidence to support her claims and did not call any of the people she claimed had heard the alleged promise by her father to give her $ 50,000 for improvements to her home to testify in her favour.
 

 

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