We have seen throughout history that it is very unlikely for both members of a couple to die on the same day, except in the cases of unexpected tragedies and other similar, unfortunate events.
The Succession Law 1965 states that in any situation where a person passes away and does not leave a will, his estate will be divided according to “heirs according to law,” which is generally determined according to blood relationship.
This division states that upon the death of the person, the estate will be divided as follows: half will go to the spouse and half to the children. If you are interested in ensuring your financial rights, as well as the savings and the household that you created together with your spouse is passed on to your remaining spouse, it is important to draw up a mutual will.
A mutual will refers to two wills that rely on each other. It can be written in one document or in two separate wills, and the main idea is that in any situation where one spouse dies, the property will pass to the other spouse in full. Only once both spouses have passed away can the descendants benefit from the deceased couple’s estate.
A mutual will is the only case that allows a party included in the inheritance to be present during its drafting, for example, one of the children, without this affecting its credibility.
This can prevent a situation, for example, where the widower is forced to leave the apartment that they lived in for many years due to the children’s desire to sell the apartment and receive their share of the inheritance according to law.
In this article, we will explain the amendment to the law added in August 2005, how mutual wills can be revoked both pre- and post- amendment, as well as how mutual wills can be changed in an agreed upon and legal manner.
Amendment to the Law of Inheritance – Mutual Wills
Spouses in a mutual will enter into an agreement to which they are both obligated to abide by. The revocation of a mutual will is done in accordance with Section 8a of the Succession Law and is a special case within the general category of will annulments. This section entered into force in August 2005, as part of the 12th amendment to the law.
This is the language of the amended law:
“8a. (a) Spouses may write wills based on the reliance of one spouse in the will of the other spouse; such wills can be made whether the beneficiary, according to any of the wills, is the spouse or whether he is a third party, it can be either two documents drawn up at the time or one document (in this section – mutual wills). (b) Revocation of a mutual will is not valid unless one of the following occurs:
(1) While both spouses are alive – the testator requesting to revoke his will shall give written notice of the revocation of the will to the other testator; Notice was given as mentioned, the nullity of the mutual wills of both testators;
(2) After the death of one of the spouses – (a) As long as the estate is not divided – the surviving spouse who wishes to revoke his will may exclude himself, not for his benefit but for the benefit of his child or for the benefit of the brother of the testator, any portion or part of the estate that he is supposed to receive according to the mutual will of the testator who died; (b) After the division of the estate – the surviving spouse who seeks to revoke his will may return everything he inherited according to the mutual will to the estate, and if this is impossible or unreasonable – he will return the value of the portion or part of the estate he inherited; (c) The provisions of subsection (b) will apply if there is no other provision in the mutual wills, but a provision that completely denies the right to revoke the will during the lifetime of both spouses is null and void.”
Revoking a mutual will before 2005 was a simpler process, since mutual wills made before the amendment to the law did not establish a real, mutual obligation between the spouses. The amendment actually created a binding legal procedure for these wills. Thus, before the amendment, one of the spouses could change or annul the will without notifying the other spouse.
The rule is that the existence of reliance must be proven in mutual wills drawn up before August 2005, while the amendment sees reliance as a necessary aspect of the will’s evaluation. In wills made before the amendment to the law, one of the spouses could revoke his will without notifying the other spouse and still enjoy his share of the inheritance.
This is the place to point out that it does not matter if the spouses intended to change the will or annul the mutual will at a later date, since in both cases they will have to make a new will.
For example, in November 1999, the Supreme Court rejected an appeal against a District Court ruling that allowed a second will written by the spouse after her husband’s death, which annulled a mutual will written earlier when both were alive, to be upheld. (Melamed Case 4402/98).
The court ruled in a precedent ruling that it can be established according to the principle of reliance, that revoking a will by a testator after the death of his first spouse is an action that was done in bad faith and in fact goes against Section 39 of the Contracts Law, 1973, since a will is a form of legal action, although it is not a contract.
In the same case, the couple explicitly wrote in their will that they had the right to change it at any time, thus actually agreeing to limit the concept of ‘mutuality,’ and therefore the two expressly rejected the principle of reliance in the will.
The president of the Supreme Court, Judge Aharon Barak addressed this and in fact paved the way for the amendment of the law that came a few years after the ruling in question. He wrote in his ruling: “The legal methods that recognize joint and mutual wills state that the testator’s revocable power is limited. However, these legal methods generally recognize an agreement regarding a person’s inheritance, whereas Israeli law does not recognize this (Section 8a of the Succession Law) ). Against this background, the question arises, what is the law in Israel? Judge Kister noted, in relation to a mutual will, that ‘each of the testators is free to change his will until the day of his death, and there is no special law in the case where two people draft wills, one for the benefit of the other’ ( 576/72 above, on p. 380). This result is complex. In English common law, this complexity was overcome with the help of the fiduciary principle: upon the death of one of the two joint and mutual testators, the second testator becomes the trustee. This can also be determined in Israel, because in the interest of reliance, revoking the second will is an action that is not done in good faith, contrary to the provision of section 39 of the Contracts Law (General Part), 5733-1973, which also applies to a legal action (such as a will) that is not considered a contract (section 61(b) to the Contract Law”.
Revoking the will before the death of one of the spouses
As mentioned previously, the amendment made in 2005 in Section 8a established that when two spouses draw up a mutual will, they do so based on the reliance of one spouse on the will of the other, and therefore the ability to unilaterally revoke mutual wills is limited. This means that the couple made an agreement between themselves that must be adhered to and cannot be revoked unilaterally without the knowledge and consent of the other spouse.
As long as both spouses are alive, revoking the will is relatively simple. It is enough for one member of the couple to send a written notice to the other spouse stating his wish to cancel the mutual will in order to annul it (as long as the other spouse is competent). The written notification is a threshold condition for the annulment of the will, if it is not fulfilled – the validity of the mutual wills will be renounced.
The notice of revocation must be formulated in writing, contain a date, the identification details of both members of the couple and explicitly state in it that one spouse is declaring the annulment of the mutual will drafted on the specified date. A copy of the mutual will must be attached and produced by registered mail, and in the case of personal delivery, a certificate stating this must be added as proof of receipt of the notice.
Changing a mutual will after the death of the testator
Revoking a mutual will after the death of one of the spouses is a more complex and limited matter.
If the estate has not yet been divided, the inheriting widower will have to give up their share in the estate through a procedure of total disinheritance in order to revoke the mutual will. If the estate has already been divided, the widower will have to return what they inherited from the deceased spouse in order to lead to the actual annulment of the will.
This means that in any case, if the widower requests to cancel a mutual will, they will have to give up their share of the estate stipulated in the will.
For example, in September 2016, a family court in Jerusalem accepted an appeal filed by children against their mother, objecting to a second will that revoked a previously drafted mutual will following the death of the woman’s husband. The mutual will stated that after the death of both the mother and the father, the property would be divided equally among all of their six children. In the second will drafted after her husband’s death, the woman left her property to only two children out of the six children, because of their devotion and the fact that they took such care of her her, while the other four children became estranged and cut off all contact with their mother (41295-09-16).
In the ruling, Judge Felix Gorodetsky wrote that “had the deceased known that his widower would change the mutual will, and in fact violate the “testamentary contract”, he could and would have improved the situation of the appellants by making a normal will which would have benefitted them, while excluding his widower and the defendants from inheriting his estate. He did not do so, relying on the mutual will as assurance that the estate would be divided among all the children equally.
The result is that the mutual will is upheld.
The practical result is that the objection is rejected. As a result, the request to enact the most recent will was also rejected.”
The procedure which must be followed in order to revoke a will requires legal knowledge and expertise. Annulling a mutual will is a special revocation of a will and must be done according to the rules established in the law, which have received appropriate policy in judgments over the years.
We want to achieve the best results for you, and we therefore highly recommend contacting a lawyer who is an expert in the matter. Together, we will create a joint action plan through which you will receive appropriate guidance and assistance, as well as helpful recommendations and professional legal representation. Please feel free to contact us via the following number: 055-9826594 or through the live chat on our website.