‘Helping ’ Elderly Testator – Grounds For Cancellation
Question:
My mother is old and physically frail. She has told me that she wants to make a will. She asked me to find a lawyer and take her to the lawyer’s office. Friends warned me that I should not be so closely involved as this could invalidate the will as I am bound to be a beneficiary. It would seem very rude if I refused to help my mother – but is it allowed ?
Answer:
There is some basis to the warnings received. Under the 1965 Inheritance Law the court can declare a will invalid or cancelled if it is proved that a beneficiary has participated in the preparation of the will, or has unduly influenced the testator.
Binding Supreme Court precedent from the 90’s, particularly, tends to show a more flexible attitude . he Merom case, which went to an additional hearing before an enlarged panel of judges,recognised that it is natural that people close to a testator with limited physical mobility will help in finding a lawyer or even escorting him to the lawyer’s office. This does not necessarily indicate dependence which deprives the testator of his own free will or creates the assumption of undue influence, it held . As long the court is satisfied that the testator had finished making up his mind about bequeathing his property and was the master of his own will,then logistical help along the lines mentioned should not be grounds for cancellation of the will. Of course, the family or friends should not be present in the same room at the time the testator makes the will.
In July 2002 the Tel Aviv District Court upheld a will made this way by an elderly widow who had bequeathed everything to her eldest son, and left out all her other children. Some of them appealed against probate granted by the family court, claiming that their mother had been unduly influenced by their brother who had taken a part in the preparation of the will. He had brought the local lawyer to the family home, been in another part of the building when his mother met with the lawyer, and had supplied documentation requested by him.
The court accepted the evidence provided by the lawyer who had drafted the deceased’s will. He also testified that in his opinion she had clearly made up her mind about leaving her property to only one of her many children, and explained that this was because he had taken responsibility for her and the whole family for many years. This was tradition in the testator’s community, and her will reflected this tradition, it was held.
Legitimate Persuasion & Undue Influence
Question:
When does discussion and persuasion amount to 'undue influence' on a potential testator?
Answer:
The dividing line between legitimate persuasion and undue influence is very fine. The Supreme Court said of this in the 90's: "The question whether influence was put on the testator is a question of fact. The question if the influence was undue is a question of normative value…. The difference between legitimate influence and unfair influence is sometimes clouded and cannot be clearly made. It is found within the realm of setting normative values and connected in its substance to integrity."
The law relating to undue influence is designed to prevent the validation of wills that did not reflect the testator's free and true will /wishes, the Supreme Court has stated in different ways over the years.
Making Will – Testator Has Basic Command of Spoken Language Only
Question:
Can a person who only speaks very basic Hebrew make a valid will in that language ?
Answer:
Yes. It is possible for a person with very basic spoken Hebrew to make a valid will in Hebrew. It can be made through a lawyer who can phrase the basic idea expressed by the potential testator in accepted legal terminology. To check that the draft expresses the testator’s wishes the lawyer can ‘read it back’ , simplifying what is said, and checking that this is correct.
In July 2002 the Tel Aviv District Court upheld a will made this way by an elderly lady of Yemenite origin who spoke basic Hebrew with a heavy Yemenite accent. It rejected an appeal by some of her disinherited children to cancel the probate order granted by the family court. Crucial evidence was provided by the lawyer who had drafted the deceased’s will. He testified as to the drafting process and how he constantly checked with the deceased that she had understood him, and that he had expressed her true wishes. He also testified that in his opinion she had clearly made up her mind about leaving her property to only one of her many children, and explained why. The lawyer’s son, who also witnessed the ‘signing’ of the will, also testified to the fact that the testator appeared to take an active part in the conversation and understood what was going on.
Illiterate Person Can Make Will
Question:
Can a person who cannot read and write make a will in Israel ?
Answer:
Yes. It is possible for an illiterate person to meet a lawyer, and explain to whom he/she wishes to leave his/her property, and explain what his/her estate consists of. The lawyer can draft a will along these lines and it can be ‘signed’ using a thumb or finger print rather than a handwritten signature. The two witnesses present during the ‘signing’ can attest to the fact that the testator signed it of his/her own free will. If the will is challenged the lawyer can also testify as to whether the testator was clear in her mind about to whom he/she wished to leave his/her property , and comment on his/her mental state at the time of making the will.
Alzheimer’s Disease & Will-Making Capacity
Question:
Is a person suffering from Alzheimer’s disease legally capable of making a will ?
Answer:
Yes, it is possible , depending on the testator’s mentally state at the time of making the will as the disease is characterised by waves of clarity and waves of confusion, so it was held by the Jerusalem District Court in June 2002 . The strongest and most relevant evidence regarding a testator’s mental capacity is that relating to the actual time when he made the will – the very moment, or at least the same day or close to it, the court stated. Testimony from a doctor is preferable, but other evidence, if credible, has weight. To prove that a testator was not mentally fit to make a will one has to provide clear, substantial evidence .
Rejecting an appeal against a family court judgment which refused to cancel a probate order concerning the will of a man suffering from Alzheimer’s disease, the District Court preferred the testimony of the notary before whom the testator had made the will, to other evidence. It affirmed the testator’s lucidity at the time he made the will. The District Court referred to the Swartz case in the 90’s where the Supreme Court stated that if the court of first instance is satisfied by a notary’s testimony that the testator had the necessary mental capacity to make the will then this may be preferred to any other evidence providing it finds it credible .
The District Court also confirmed that the family court was right in giving more weight to the family doctor’s evidence than it did to the outside medical experts. This attested to the ups and downs of the illness and reference to conversations he had with the deceased since he had started to develop the disease.
Blind Testator – Will Before Notary
Question:
Are there any special regulations to be observed if someone who is blind wishes to make a will before a notary ?
Answer:
Yes – according to the 1978 Notary’s Regulations a notary who authorises a will of a testator who is blind must state this fact on the back of the authorisation of the will, together with the fact that the testator understood the consequences of the legal deed.
Blind Person’s Will – Supreme Court Recommendations
Question:
Is there a recommended way for a blind person to make a will ?
Answer:
In the 1990's in the Landau case, the Supreme Court precedent recommended potential testators who cannot read to make a will before an authority, unless they have exceptional trust in two people who could act as witnesses.
Deaf or Dumb Testator – Will Before Notary
Question:
Are there any special regulations to be observed if someone who is deaf or dumb wishes to make a will before a notary ?
Answer:
Yes – according to the 1978 Notary’s Regulations a notary who authorises a will of a testator who is deaf or dumb must state this fact on the back of the authorisation of the will, together with the fact that the testator understood the consequences of the legal deed.
Secret Dictaphone Recording– Not a Will
Question :
Can a recording of an elderly person about their property which is made without their knowledge amount to a will ‘ in writing’ ?
Answer:
No, according to the judgment of Tel Aviv Family Court in an estate case in March 2003 which rejected an application for probate based on a dictaphone recording of the deceased made in an Israeli old people’s home by a lawyer from a non-profit making organization without her knowledge . The court held that the 1965 Inheritance Act was very rigid about the form a will could take and a recording could not constitute a written will, as the act clearly intended this to mean a holographic will in the testator’s own handwriting. It could, however, provide supporting evidence. Furthermore, where a person is recorded without their knowledge about their property in such circumstances , they cannot be supposed to be intending to make a will and or to have reached a firm, final conclusion about his/her property .
Video of Testator - Evidence in Inheritance Case
Question:
Can a video recording of a deceased talking about his/her will be used as evidence in a court case over his/her inheritance ?
Answer:
Yes, although this would be rather novel. In August 2003 a video recording of a 77 year old testator talking to a psychiatrist about the will she had made was accepted as evidence by Haifa Family Court. It was instrumental in persuading the court to reject claims that the testator lacked the necessary legal capacity to make a second, later will, or was unduly influenced by her caregiver. The court granted probate for the later will, which was in favour of the caregiver, whereas the previous will, which was not upheld, included the deceased’s family as the main beneficiaries.
The judge actually recommended the use of video recording to document the making of a will where the person is elderly and his/her mental capacity or free will is likely to be contested. He said that “a cautious lawyer in these circumstances needs to arrange a video photographer and to record the making of the will and the testator",and added that, in effect, "the deceased acts as a witness in a case over her own inheritance."
Making Will in Old Age Home
Question:
Can a person living in an old age home who is not physically fit enough to go and see a lawyer still make a will ?
Answer:
Yes ! An arrangement can be made for a lawyer to visit the old age home, take instructions from the person and return with a typed copy of the will for approval and signature in front of witnesses. Sometimes it is advisable for a doctor to examine the testator just before he/she makes the will and make a written declaration as to his/her mental capacity to make a will. This will help enforce the will should objection be made to an application for probate based on claims that the testator lacked the legal capacity to make a will.
Making Will Before Notary Who is Guardian
Question:
Does court permission have to be gained before a notary, who is the guardian of the property of someone living in an old age home, can make a new will for that person ?
Answer:
No! Although in December 2002 in an estate case heard by Tel Aviv Family Court the beneficiaries of a previous will made by the deceased testator claimed that a notary who is also a guardian of a testator’s property must get court permission prior to drafting a new will for that person because of the potential for undue influence. The court rejected this argument and stated that the 1965 Inheritance Act makes no reference to this potential for undue influence and cited caselaw showing that there is nothing per se in such a situation that points to undue influence. This would have to be proved on the facts, not by virtue of the appointment itself.
Death Bed Will
Question:
My father died recently in hospital after being seriously injured in a car accident. He was a widower but remarried a few years ago. Shortly before he died when all the close family was gathered around he said that he wanted to leave me the bed-sit he had inherited from his brother. Am I legally entitled to inherit this on the strength of my father’s oral declaration from his hospital bed ?
Answer:
In theory, yes, if certain conditions set out in the 1965 Inheritance Law regarding oral wills are satisfied. Someone who is very ill and bedridden or someone who justifiably sees him/herself facing death is legally entitled to make a will in the presence of two witnesses who are not due to benefit under the oral will. The witnesses must record what they hear and deposit their record with the Inheritance Registrar as soon as possible. If a month after the oral will is made and the circumstances justifying its making have elapsed and the testator is still alive, then it is automatically cancelled.
In your case, if your late father was of sound mind although he was clearly facing death, and there were two people other than yourself who heard this declaration and who can prepare a memo or affidavits to this effect, then an application can be made to the family court to uphold this oral will, although a satisfactory explanation for the delay in doing so must be given. If the family court does not uphold the oral will, and your father did not make a written will, you will be entitled to inherit according to the terms of the Inheritance Act, along with your late father’s second wife and any other children he had, or adopted.
Parent Entitled To Bequeath All Property to One Child
Question:
Can a parent make a will leaving nearly all his property to only one of his children, who is mentally handicapped, because he knows the others will be able to support themselves without any problem ?
Answer:
Yes! A person is free to do whatever he likes with his property in his will. If, however, he chooses to leave property to a child who is mentally handicapped then that child will need to have a legal guardian after the testator's death.
Testator Free to Limit Parental Control of Minors’ Inheritance
Question:
I want to make a will in which I leave property to my grandchildren. I trust my son but not my daughter-in-law. I am not sure about the stability of their marriage either. Am I entitled to give instructions in the will appointing my son, or a neutral person outside the family, to manage the property I bequeath the grandchildren, while they are minors ?
Answer:
Yes, a testator is free to attach restrictive conditions to a bequest to grandchildren in a will. According to the 1962 Legal Property and Guardianship Act those instructions would take precedence over the normal role of parents as natural guardians, with responsibility over their minor children’s property, with regard to the bequest.
How To Exclude Heir From Inheritance
Question:
I am married with children,and have one child outside of marriage, about whom my wife has no idea and whom I wish to exclude from my inheritance. Can this be done, and if so,how ?
Answer:
Where someone wishes to exclude a potential heir from his/her inheritance this can be done by making a will. Two recommended options exist – one is to make a will which contains an explicit instruction for that person to be excluded from the inheritance, whilst the second one bequeaths him a small amount to indicate that he was not omitted out of forgetfulness, but that the testator intentionally only wanted to leave him something little. It is possible to make a will which does not make any reference to the person the testator wishes to exclude – however, in the case of a child, even from outside marriage, this is likely to result in a formal objection to probate.
Disinheriting Heirs – Re Whole or Part of Estate
Question:
If a deceased makes a will disinheriting heirs does that mean that they will not get anything at all from the estate ?
Answer:
Not necessarily. Firstly, the will must be declared valid before any of the estate can be distributed according to it. Secondly, the will may relate only to certain property and not the whole of the deceased's estate. If the will is challenged by an heir, the family court will examine whether the testator's intention was to disinherit the heir/s from all or part of the estate. If the will is upheld, and only relates to part of the estate, the heir/s will still be entitled to their part to the remainder of the estate not covered by the will, according to the terms of the 1965 Inheritance Law. If the will is upheld, but relates to all of the estate, then the heirs may not receive anything.
The heirs are entitled to challenge the will and try to prevent the court upholding it.
Elderly Parents Wills
Question :
My wife and I are in our seventies. We made aliyah from the States many years ago. We have an unmarried daughter in her late thirties whom we would like to leave a substantial amount of money when we die. However, I am concerned that if I die first, my wife should have enough to live on, and she, the same. I am also worried because my daughter seems quite serious about her current boyfriend who we disapprove of. We suspect he plans to marry our daughter and get rich on a divorce settlement.
Can all my wishes be incorporated in a will ?
Answer:
Yes, a husband and wife can each make your own will, with essentially the same provisions, which, when skillfully drafted by an experienced professional, should fulfill your wishes. The Inheritance Law provides a testator with almost absolute freedom to decide what and how much he/she leaves to whom ,and if and when they should get it, by way of various mechanisms.
For example, the mechanism “successive heirs” allows a bequest to two persons – e.g. a spouse and daughter - by which the second bequest (to the daughter) only holds on the wife’s death or if a certain pre-condition /time condition set in the will is fulfilled, whichever comes first. Another mechanism “substituted heirs” allows for the second heir to inherit if the first does not (e.g. if (s)he is disqualified from inheriting).A further mechanism, relevant to the daughter in this case is the “conditional bequest”, whereby someone will only inherit if s/he behaves in a certain way or at a certain time.
Problem With Mutual Wills
Question:
My wife and I have been wondering whether we should make mutual wills. We have four children amongst whom we wish to divide our property after we both die. Is it a good idea or is it problematic ?
Answer:
In principle when a couple agree that both of them wish to bequeath their property to their children after the last of them to die finally passes away it seems sensible for them to make mutual wills to this effect. However, in practice this can be problematic if the surviving spouse for some reason wishes to change his/her will, or is over-zealous in using up the property during his/her lifetime. Courts can take different approaches to mutual wills, too.
For example, two cases before separate family courts in 2002 involving mutual wills were decided very differently. The Tiberias Family Court upheld the spirit of a mutual will and held that the surviving spouse, the mother, was free to enjoy the fruits of the deceased’s property, but had no right to divide it up against the egalitarian principles they had set in their mutual will, that would benefit each child equally. In contrast, the Kfar Saba Family Court upheld a surviving spouse’s rights to change a mutual will he and his late wife had made in which their children were ultimately intended to benefit, and make a new will after he had remarried.
Editor’s Note –
Under the principles of precedent in Israeli law it is possible for two courts of the same level – e.g. family courts- to give seemingly conflicting decisions. Only Supreme Court rulings bind them. Even rulings of district courts, superior to them in the court hierarchy, are only of guiding , and not binding, force.
Changing Will - Prerogative
Question:
I am in my eighties and have just come out of hospital. I have two daughters. I let my eldest daughter handle my financial affairs while I was ill, arranging for her to sign my cheques. I have now discovered that she has been slightly dishonest. I want to alter my will to take into account money she “borrowed” but “forgot” to tell me about. Can I do this?
Answer:
Yes, according to the Inheritance Law, a person who is of sound mind is perfectly free to cancel, alter or re-make his/her will, provided they are not tricked, forced, coerced or unduly influenced into doing so. A testator (someone making a will) who discovers that a potential beneficiary has taken property belonging to him/her or behaved improperly in some way is perfectly entitled to cut that person out of their will entirely, or reduce what they leave to them.
One method of “taking into account” a beneficiary’s inappropriate action is by making a new will, which cancels the old, and states specifically what is being altering and why. This in effect says that the testator is giving up his/her right to get back what was taken and, therefore, will put a legal block on a claim after the testator’s death by another beneficiary who may make a claim against the eldest daughter to get that money put back into the estate to be divided up.
Impending Divorce – Changing Mutual Will
Question:
Can a spouse who made a mutual will but now intends to divorce cancel it ?
Answer:
Yes! A will can be changed or cancelled by a testator at any time, irrespective of divorce or whether the other spouse was involved in the will.
Husband Changes Mutual Will Secretly
Question:
My wife and I made a mutual will together several years ago. In it each one of us leaves the other their estate, with the children inheriting after the surviving spouse dies. I have suspected that my wife has been having an affair for some time. My health has deteriorated following a heart attack . I am concerned that I could die and this man could exploit the situation to his financial advantage as my wife is very naiive . I can see my children being left without anything. Can I change the will secretly ?
Answer:
Either spouse is free to change their part of the mutual will without the other spouse’s knowledge, in favour of different beneficiaries i.e. just your children . Thus a husband or wife who for any reason is concerned about the terms of their mutual will can make a separate will which specifically states that he/she is cancelling his/her part of the mutual will . New beneficiaries and terms can be made in this will. This change will relate only to his/her property ,but of course will not relate to the other spouse’s property.
Son “Cut Out” By Altered Mutual Will
Question:
My late mother married again after my father died. She and her second husband made a “mutual will” that basically said if one of them died the other would inherit all the property and after both of them died, I would inherit it. To my horror after my mother died this man said that everything of my mother’s was now his and he could do what he like with it. Is this so ?
Answer:
No, on a strict interpretation, the terms of a mutual will are binding and the surviving spouse cannot just alter or cancel the terms to exclude the heir who is due to inherit after they both die. Sometimes, however,courts have not upheld mutual wills, so there is no guarantee.
Change in Will Unnecessary Because Sole Beneficiary Changes Name
Question:
My husband and I wrote separate wills in which each of us leaves everything we have to our only child, who is the sole beneficiary . When we made the wills our daughter was very young. She is now 18 and has recently changed her surname, to a shorter, Israeli-sounding name . We had a very long, old-fashioned, ‘Diaspora’ – sounding name, she said. Do my husband and I have to change our wills because our daughter has changed her surname ?
Answer:
No ! Where, as in this case, there is no dispute about the identity of a beneficiary as being the testators’ child there is no need to make any changes in the wills because he or she has changed his/her surname, first name or both so long as the identity card number remains the same and is recorded on the will, as is customary, next to the beneficiary’s name . In addition, records at the Ministry of the Interior would show any change in name and the connection between the old and new name.
Handwritten Note Cancelling Will
Question:
Does crossing out part of a will by hand cancel that part or all the will ?
Answer:
If a testator crosses out part of a will in his/her own handwriting it does not mean that he/she has destroyed the whole will, according to the Inheritance Act, but that only the part crossed is cancelled. However, if he/she makes a crossing out on the back of the will and signs and , preferably dates this, then this amounts to cancellation under the act. Even if he/she omits to sign or date this crossing out but the court is satisfied that he/she had made a definite decision to cancel it then it can use its discretion and rule that the will is not valid.
These points were stressed by the Tel Aviv Family Court in an estate case concerning a will made by the deceased who was survived by two adult sons from his first marriage, and a wife and minor child from his second marriage. Before his minor child was born he had made a will in England leaving his Israeli property to one of his adult sons and his English property to his second wife. A few years later the deceased made a second will in England, relating to his English property alone, bequeathing it to his minor son. After his death, his adult son applied for an order in Israel enforcing the first will, and the deceased’s second wife objected, claiming that the deceased had cancelled the instructions of the first will by crossing out parts in his own handwriting.
The court rejected the second wife’s plea , saying that great care must be exercised in accepting crossings out as a way of cancelling and not merely changing wills, to avoid this method being used to by-pass traditionally accepted ways of doing so. In this case the widow had not proved that the deceased had intended to cancel the whole of his first will – the court held that the crossing out of some parts was preparation for drafting the second will.
Testator Switches To Prefer Nephew To Neighbours
Question:
For many years we voluntarily helped our elderly neighbour, who wanted to continue living in her apartment, rather than move into an old people’s home. We did her shopping, took her to the doctor, if necessary and generally ‘adopted’ her although she did have a home-help a few times a week. She had no surviving relative except for a niece who only visited her about once a year. A few months ago her health deteriorated and she moved into an old age home. The day she moved she told us that she had ‘remembered’ us in her will. She died recently. At the funeral we met her niece. She told us that she had visited her aunt several times a week after she moved into the home, and that had arranged for a lawyer to visit her and had made a new will leaving her everything. Was our neighbour entitled to act as she did ?
Answer:
If a person is of sound mind and not subject to pressure or undue influence he or she is free to cancel a previous will and make a new one. This point was emphasised in an estate case before Tel Aviv Family Court in December 2002 where a second will was upheld despite the fact that the beneficiaries under a previous will, acquaintances of the deceased, contested it . They claimed that the testator had been pressurised into making made the new will in favour of the only surviving relative, a nephew, who had visited the testator regularly during the last few months of her life. The court rejected their claims, holding that the evidence showed that the testator had acted out of her own free will, and that it was her prerogative to leave her property to her only surviving relative who had grown close to her.
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