Appealing a deathbed will in Israel

Any Israeli who believes they are about to die can make an oral will by telling at least two witnesses how they want their property disposed of. For obvious reasons, an urgent dying will requires far fewer formalities than a regular will. That said, it is also more vulnerable to reinterpretation and nullification. In this article we will review a specific case of appealing a deathbed will.

Our clients were in danger of being denied a portion of their inheritance, with a new oral will overriding the prior will, made in writing before witnesses. Naturally, the question arises – how to tell whether the new will is valid, or how to prove that it isn’t?

Eight children and one plot of land:

Our story concerns Menashe (a pseudonym for the purposes of this article) and his eight children. The background involves a fairly complicated few decades of family squabbles, with plots of land gifted and returned, emotional conflicts escalating into physical violence, and suits concerning financial debts. The exact details, not all of which are relevant to the article, can be found in the full judgment.

For our purposes, the starting point is when Menashe, now aged 94, finds himself in the hospital, losing his fight against cancer. Three of his children, accompanied by his grandchildren, visit him, recording the ensuing conversation. They query him about specific details and past events so as to establish that Menashe is sound of mind and memory,. Directly thereafter, they try to convince him to alter his will.

The previous will, signed before witnesses, split Menashe’s real estate and land between the five offspring with whom he maintained a healthy family relationship, disinheriting the three who are now at his bedside.

With a mixture of persuasion that a fair split between all eight siblings is the only thing that makes sense, pleading their financial circumstances and the needs of Menashe’s grandchildren, swearing that an even split would ensure they and their children would cherish Menashe’s memory and pray for his soul, and offering to withdraw the current lawsuits against Menashe on their behalf in exchange, they apparently convince their father to draft a new will.

Shortly thereafter, Menashe passes away. Two weeks later, after the Shivah and having written up a memorandum in which they ostensibly state Menashe’s last wishes verbatim, the siblings appeal to the Jerusalem family court for a probate order that will override the previous will, and to divide Menashe’s estate evenly, as per his recorded final instructions.

Several of the offspring, who were the sole beneficiaries of the original will, contact our law office to represent them. In appealing the deathbed will, we argued that it was invalid due to a number of reasons. The family court’s decision weighed on each point of our argument before rendering a judgment.

What are the legal requirements of a deathbed will?

  • The testator (person making the will) must justifiably assume that they are about to die, and declare their final testament with said knowledge in mind.
  • The testator must in fact pass away a month or less after making the oral will, otherwise the will is rendered void.
  • The oral will must be spoken before least two adult and legally competent witnesses, who can understand what the testator has said and who record their words exactly in a memorandum, deposited with the Registrar of Inheritances.
  • As per usual when making a will, the testator must be competent, cognizant, and the drafting of the oral will must be free of pressure, threats, undue influence and deceit.

Did Menashe know that he was about to die?

For the purposes of a deathbed will, the testator must subjectively believe they are about to die, or are likely to die. Furthermore, an objective evaluation of the circumstances must support said subjective belief. Given that Menashe’s cancer treatment was ongoing, and the medical staff was cautiously optimistic about his chances, we argued that he did not necessarily have grounds to believe his time on earth was coming to an end.

The court considered that a 94 year old battling cancer may reasonably consider himself to be near death even without any sudden changes to his diagnosis. And in fact, Menashe did pass away shortly after the conversation with his children.

As an oral will is only valid for a month, and will “expire” if the testator does not die within said time limit, the argument that the testator was not objectively near death when making the will is rarely successful.

Appealing a deathbed will in Israel

Was the will properly witnessed?

According to Israeli inheritance law, heirs cannot be party to the drafting of a will which concerns their inheritance. In fact, every party to the drafting aside from the testator, including the attorney or notary, if one is present, must have no part of the estate.

That said, the heirs can in fact be the witnesses of an oral will, as it is an impromptu and urgent announcement that may not necessarily allow time for the arrival of more objective and “qualified” witnesses. Menashe’s offspring were legally competent adults who understood (perhaps too well) the language in which he spoke. Furthermore, the heirs have in fact made a voice recording of their father’s wishes, which brings us to the next point.

Did Menashe desire to make an oral will?

As we have already noted, a deathbed will dispenses with certain formalities. The testator does not have to state they know that they are about to die, or that these words are their last will and testimony. That said, it must be clear from what the testator said that they do in fact wish their words to be a will.

This was not the least bit apparent to the court from Menashe’s recorded words. While his offspring consistently tried to stir him towards declaring that his property should be split evenly and that he declares so as his final testament, Menashe at best expressed a desire to have an attorney attend his bedside so at to draw up a new will at a future date.

In particular, the recordings of what Menashe actually said did not coalesce with the memorandum drafted by his children, despite them ostensibly consulting the recordings before drafting it. Many decisive statements that the children asked Menashe to make and which he vaguely agreed to or argued with, were written down as having been said by him.

Was Menashe legally competent and cognizant, capable of making a will?

On the one hand were the questions posed by the family members during the conversation, meant to demonstrate Menashe’s lucidity, and the opinion of a medical expert on their behalf.

On the other hand were the testimonies of medical staff taking care of Menashe during his hospital stay, and the evaluation of a medical expert appointed by the court.

In summary, despite periods of lucidity during which Menashe could hold a semi-coherent conversation there was plentiful evidence of mental decline and loss of capacity. In particular, Menashe was incontinent during his last weeks of life, an ailment that has less to do with physical deterioration and more to do with cognitive issues.

Furthermore, the position of the disinherited children would have been bolstered had they been able to secure a medical opinion concurring that their father is mentally competent while he was still alive. No such opinion was asked for, nor received.

Was Menashe under undue pressure from his disinherited children?

The Israeli Law of Inheritance, 1965, clearly states that “A testamentary provision made under duress, threats or undue influence or as a result of trickery or fraud is void”.

In this case, the disinherited claimants were undone by their own recordings, where it was clear that they were putting their words into their father’s mouth, pressuring, pleading and bargaining in every way to amend his will.

In particular, while a will can include compensation or reward for help given to the testator during his lifetime (for example, a child who took care of their ailing parent being given a larger portion of the estate), it cannot be a subject of a qui-pro-quo contract, such as the agreement to withdraw the lawsuits the children filed against their father in exchange for amending the will. Furthermore, even if such a contract was legal, the offspring reneged on their part of the deal and failed to withdraw their lawsuits.

In general, the court stresses the overall negative impression the claimants made, with their contradictory statements, apparent falsehoods, and aspersions against the inheriting siblings and the veracity of the previous will. We generally note that having a number of legal arguments, each of which would, if accepted, lead to a favorable verdict, is a perfectly reasonable strategy. That said, accusing the other heirs of falsifying a will was a very serious claim, made with very little evidence.

The importance of having a well drafted will, made by a legal professional:

The family court judge specifically stated how valuable and important the advice of an experienced lawyer familiar with the exact details of the events can be to the testator in such cases. The reputation of the lawyer who drafted the will and their legal professionalism left the attack on the part of the disinherited offspring appearing desperate and floundering.

That said, a seemingly minor quibble did draw the attention of the court – though Menashe signed the will in the presence of the witnesses, as required by law, the witness statements did not explicitly say that that is what happened. However, the attorney verification of the signatures did state the will was read to Menashe before he signed it before witnesses. Which serves to demonstrate the importance of familiarity with procedure and pedantic adherence to exact legal formulas on the part of professionals intimately familiar with the drafting of legal documents in Israel.

What was the final verdict?

Menashe’s prior will, written and signed in the presence of witnesses, was used as the instruction to divide his estate. His property was split evenly between five of his children, with the exception of a portion allocated to pay for his funeral expenses.

In addition, the three disinherited offspring were required to pay legal expenses for the brothers represented by our law office, for a total of 50,000 NIS. The siblings not represented by an attorney were also compensated, for a total of an additional 4000 NIS.

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