Oral Will in Israel – Deathbed Will

This type of will is valid for one month from the date it was made and becomes void if the testator does not pass away within that time frame.

After the will is declared before the witnesses, they are obligated to submit a written record of the event to the Registrar of Inheritance Affairs, as soon as possible after the will was made. This is an essential component for the will’s validity.

Section 23(a) of the Inheritance Law, 1965 states: “A person on their deathbed, as well as anyone who, under circumstances that justify it, sees themselves facing death, may make an oral will in front of two witnesses who hear their words.”

In other words, according to this section, an oral will can only be made in one situation—when the testator perceives their death to be imminent under justified circumstances. This scenario encompasses two conditions: (1) a subjective condition and (2) an objective condition.

The subjective condition concerns the testator’s perspective, examining whether they believe they are facing their final hour, regardless of whether they are correct or not. In this case, the testator must genuinely feel that they are facing death when making the will.

The objective condition pertains to the circumstances that justify the testator’s subjective feeling. It is not enough for the testator to believe they are near death; the circumstances surrounding this belief must also provide sufficient justification for this perception of their end.

It is important to note that these are cumulative conditions, not alternatives, meaning that for the will to have any chance of validity, the testator must genuinely believe they are at the end of their life, and the circumstances that lead them to this belief must be real and substantial.

The Memorandum of Events:

Section 23(b) of the Inheritance Law, 1965, describes the requirements for the memorandum of events and outlines the formal requirements that must be met for an oral will to be valid. Its text reads: “The testator’s words, with an indication of the date and circumstances of the will, shall be recorded in a memorandum signed by the two witnesses and deposited by them with the Registrar of Inheritance Affairs; this recording, signature, and deposit shall be done as soon as possible after they can be carried out.”

This section deals with the procedural and formal requirements that, if unmet, render the oral will invalid. These include: (1) The testator’s words, the date they were spoken, and the circumstances under which they were spoken must be recorded in the memorandum. (2) The memorandum must be signed by the two witnesses who heard the testator’s oral declarations. (3) The witnesses must submit the memorandum as soon as possible after the declarations are made.

If all these conditions are met, the oral will remains valid for thirty days, and if the testator passes away during that time, the will is carried out according to their last wishes as expressed in the oral will.

Section 23(c) of the Inheritance Law, 1965, establishes the validity of the oral will as described above, stating: “An oral will becomes void after a month has passed following the cessation of the circumstances that justified its making, and the testator is still alive.” The meaning of this section is clear and does not require further explanation.

Who Can Serve as a Witness to Such a Will?

Section 24 of the Inheritance Law specifies that minors and individuals declared legally incompetent cannot serve as witnesses to an oral will.

Furthermore, while the section requires the presence of two witnesses at the time of the oral will, it does not specify their identities. This means that even random individuals present at the scene can serve as witnesses if necessary. In Civil Appeal 88/88, the ruling on this matter was established, with reference to Maimonides’ teachings in “Acquisition and Gift” – “A deathbed will does not require the testator to say ‘you are my witnesses.’ Any listener to their words serves as a witness, for a person does not jest at the moment of death.”

Thus, we see that there are relatively strict rules for making an oral will, and these rules are accompanied by additional challenges, such as limitations on the eligibility of certain witnesses. However, Section 25(a) of the Inheritance Law, 1965 provides that: “If the fundamental components of the will are in place, and the court has no doubt that it reflects the free and true will of the testator, the court may, by reasoned decision, validate it even if there is a defect in any detail or procedure specified in Sections 19, 20, 22, or 23, or in the eligibility of the witnesses, or the absence of a required detail or procedure.”

In other words, Section 25(a) allows the court to deviate from the provisions of the law listed in the sections above, as long as the court is convinced that the will genuinely reflects the testator’s free and true will. The court can validate the will despite a defect in the process or the eligibility of the witnesses.

The “fundamental components” that must be strictly followed are detailed in Section 25(b) of the law. The relevant subsection for an oral will (deathbed will) is subsection (4), which states: “In an oral will as described in Section 23, the will must be spoken by the testator themselves in the presence of two witnesses who hear their words while the testator is either on their deathbed or perceives themselves to be in a situation justifying the making of the will.” These are the core elements that cannot be waived, as their absence raises genuine concern about fulfilling the testator’s wishes.

Regarding the phrasing of the will, it is worth noting that unlike other types of wills, a deathbed will does not require the testator to explicitly state that these are their last wishes. It is sufficient if this is implied by their words or the nature of the situation.

Revoking the Will

Section 36(a) of the Inheritance Law states: “The testator may revoke their will either explicitly by using one of the forms of making a will or by destroying the will; if the testator destroys the will, it is presumed they intended to revoke it.” This rule applies to all types of wills, including oral wills.

Our office specializes in wills and would be happy to assist you in writing one.