A will is a document in which a person (hereafter: “the testator”) determines what will be done with his property (hereafter: “the estate”) after his death, or if it will stay as it is without any possibility for change.
The Succession Law, 1965 (hereinafter: “the Law”), grants both the testator and the heirs (hereinafter: “the beneficiaries”) or those who were excluded from the will various possibilities that can lead to the revocation of the will. Also, the Law determines when the involvement of beneficiaries in the drafting of the will may result in its annulment.
In this article we will detail the various ways that those affected may ‘attack’ the will in different ways in order to bring about its annulment. In the event that there is no valid will, the estate will be distributed according to the rules established by the Law.
Revocation or amendment of a will by the testator
As long as the testator is alive, he can amend or revoke the will at any time and for any reason. This is in accordance with the “testamentary freedom” that the legislature grants. Accordingly, it is also possible to revoke a will deposited with the Registrar of Inheritance at any time.
There are several ways to revoke a will:
- Drafting a new will – the testator can draft a new will. If there are provisions in the new will that contradict the previous will, the previous will is annulled (even if this is not explicitly stated). If the instructions in the new will only add to the previous will, the instructions in the previous will will continue to exist in addition to the new will.
- Destruction of the will – when the testator destroys his will, it is presumed that he wanted to revoke it (section 36 of the Law). This destruction can be done by tearing up the will, burning it or shredding it, for example.
- Revocation through one of the means of drafting a will – the testator can revoke his will through one of the ways in which a will can be drafted (handwritten, in front of witnesses, before an authority, orally). The revocation does not have to be done in the same way that it was originally drafted. This is also accepted when annuling a notarial will, since there are no special provisions in the Succession Law regarding the annulment of a notarial will.
- Revocation of a handwritten will – a handwritten document must be drawn up, along with a date and signature, in which the person announces the revocation of a will he originally drafted.
- Revoking a will in front of witnesses – a written document must be drawn up, along with a date and signature, in which the person declares that he is revoking a will he drafted. The declaration and signature must be done in front of two witnesses, who will sign the annulment document.
- Revocation of a will before an authority – one of the official authorities authorized to draw up a will: a magistrate, registrar or judge, must be notified of the revocation, either in writing or by letter. They will read the document in front of the testator, and he will declare to them that it is a written revocation of the will.
- Revoking a will orally – a person who is about to die can announce orally that he is revoking a will that he drafted. This must be done in front of two witnesses who understand and speak the same language.
An example of revoking a will orally (when the will was made in another way): a testator who drafted a handwritten will can declare orally, in front of two witnesses, that he is revoking the will. This usually occurs when the testator is likely to die (meaning: a handwritten will may be annuled through a newer will, an oral will, which is drafted while the testator is on his deathbed).
- Revocation of a will by the court –-this refers to all the cases in which the court considers objections to the will and determines that the will is revoked. Section 30 of the Succession Law states that in cases where a will is drafted due to rape, threat, coercion or any other undue influence, the court will have the authority to annul it after judging the matter. The tests conducted to examine these issues are detailed below:
Revocation of a will before a notary
Revoking a notarial will is a complex legal task but it is still possible. A will made by a notary, and certainly one entrusted to the Registrar of Inheritance, is difficult to annul, but as with any legal document, it is possible to present defects that will lead to the annulment of the will before a notary.
When an objection to a will order is filed, the court examines the objection according to elements that every will must contain in accordance with the Succession Law. However, the absence of a certain element does not automatically invalidate the will.
– Free will: If it is proven that the testator did not understand the meaning of the will, that it was not clear to him or that he was subject to external pressures when drafting it, this may lead to the invalidity of the will.
– Sound understanding of the will: A cognitively competent person who needs assistance in any matter, for example due to being confined to a bed or a wheelchair, may not be aware of the scope of his property and the implications of the will on his potential heirs.
– Conflict of interest: The Notary Law prohibits a notary from drafting a will on behalf of a partner, employee or relative (including a spouse, parent, grandparent, parent of the spouse, descendant, descendant of the spouse and the spouses of each of these mentioned, as well as brother or sister and their spouses).
– Language: The will must be translated into a language the testator knows in order that he is able to understand its content. If it is proven that the testator was not familiar with the language, or that the notary did not read the entire will to him or skipped essential parts of it, the will may be invalid.
– Medical certificate: If it is a person who is hospitalized, confined to a bed or has mobility issues, he must issue a medical certificate ahead of time that attests to his cognitive capacity, in the appropriate legal wording and on the date of the signing of the will. If there is a defect in this certificate, it is considered a formal defect and the burden of proof will pass, in this case, to the applicant for the will.
When the court holds objections to a will, the notary is usually invited to testify. During the testimony, the court will be able to determine firsthand the wishes of the deceased. In the notary’s investigation, it will be possible to get an impression of whether the deceased followed the rules of drafting a will and if there were any defects during the time in which it was drafted.
Revoking a mutual will
According to the Law, spouses can draft mutual wills. These are wills that rely on each other. If there is no other provision in the will, the evocation of a mutual will can only be done under certain conditions:
* If both testators are alive – it is enough to send a written notice to the spouse in which the other spouse announces the annulment of the will. In such a case, both wills are annulled.
* If one of the spouses dies, and the estate has not yet been divided – the widower will have to give up his share of the estate in order to annul the mutual will.
* The spouses can determine the conditions for revoking the will by inserting a clause in the will that deals with its annulment.
Revoking a deposited will
If you feel that there is a defect in the will, that the will does not reflect the wishes of the testator, or that you have been wronged and unfairly excluded from the will, you can file an objection to the will. A family court is authorized to hear objections to a will. As mentioned, there will first be an examination of the basic elements included in the will in which a defect cannot be resolved, and which will therefore result in the annulment of the will. For example, in the event that a defect is found in the witnesses to a will that is conducted in front of witnesses, this will lead to the annulment of the will. Or in the case where it is proven that a signature was forged in a handwritten will, this will lead to the annulment of a handwritten will. In cases where the will is revoked, the estate will be distributed according to inheritance laws and the heirs according to law.
If all the basic elements were met in the will, an examination will be conducted to ensure there are no other defects. If this step is completed successfully, the court will continue to examine the circumstances of the drafting of the will ,as well as the appropriate grounds for disqualification that exist within the law. Lack of free will is one of the reasons that the law determines can invalidate a will, due to undue influence.
An objection based on this element will seek to prove that external pressures were placed on the testator during the drafting of the will, for example if one of the heirs was involved, and was with the testator when it was written, meaning that the will does not reflect the free will of the testator.
There are other means of undue influence, including threats, persuasion and various pressures, and if the court is convinced of their existence, it is expected to invalidate the will. However, not every defect automatically invalidates the will. For example, ‘defects in form’, where the court can approve the will according to Amendment 11 of the Succession Law, which states that if “the basic elements of the will were met and the court determines that it reflects the free and true will of the testator, it may be upheld”. However, a defect related to undue influence, if proven, cannot be resolved.
‘Resolved’ defects can be, for example, a medical certificate proving the cognitive fitness of a person in a delicate medical condition.
For example, in September 2022, a family court in Tiberias decided to reject an objection filed by the wife and her family of a man who chose to give his entire estate to a friend who was with him during his last few days before he died of cancer. This ruling was given, despite the fact that the will included a medical certificate that was not written as required by Regulation 4(e) of the Notary Regulations (41070-08-10).
In this case, the man passed away due to cancer and a few days before his death, he asked for a notarized will to be drawn in which he ordered the transferal of his entire estate to his best friend who spent his last days with him, dispossessing his wife and his family and excluding them from his will.
After his death, the friend requested for the will to be enacted, which was objected to by the mother and daughter. The two claimed, among other things, that the will was drawn up illegally, that it did not correctly express the will of the testator, and that it was drawn up under undue influence and was therefore invalid.
Judge Assaf Zaguri wrote in his verdict that “the deceased did suffer from physical exhaustion due to the treatment he was undergoing and the cancer, but it was proven that he was lucid, oriented in time and place, and fully conscious. It was proven that the deceased began planning the drafting of the will several weeks before his death and did so when he shared this information not only with the beneficiary, but also another member of his workplace. The notary did not act in accordance with the commandment of Regulation 4(e) of the Notary Regulations and the medical certificate it contained was prepared 5 days before the signing of the will and not in the appropriate wording. However, this does not invalidate the will, but rather shifts the burden of proof to the respondent. The respondent met the burden of persuasion and the burden of bringing evidence and proved the finality of the testator’s opinion at the time of drafting the will, and therefore and by virtue of the provision of Section 25 of the Succession Law, I am determined that the missing defect in the will has been corrected and resolved.”
But what happens when the testator is dependent upon the person to whom he wishes to bequeath his estate, and that person is also responsible for managing his life and finances? In cases where the objection claims undue influence on the part of a caretaker, son, friend or neighbor, the court will, first of all, try to determine whether such a significant dependence of the testator on the heir has been proven, and then whether that dependence was used to influence the will itself. It is important to understand that there is a possibility for the testator to order to give part of, or all of his estate when he chooses to do so as a voluntary reward for assistance and help in his last days before he dies. However, undue influence in order to acquire the property of the deceased before his death is wrong and the court will therefore try to determine this. Proving such an objection is not easy, and the objector, in such a case, must prove a high level of claims and show clear proof of the alleged actions.
Even in cases where undue influence has already been proven and a year has passed since the will was drawn up, it will be valid on the assumption that if the testator had wanted to, he could have changed his will.
The court will try to examine whether there was undue influence by 4 main assessments, which constitute threshold conditions:
- Proof that the testator is subject to influence
- Proof of possibility for influence
- Proof of the heir’s ability to exercise undue influence
- The will is the result of undue influence
It is necessary to prove that the person who unfairly influenced actually benefited directly from the will. As a result, it is usually one of the heirs.
Another very important factor in proving an objection to the will is examining the testator’s independence when he drafted the will. To determine this, evidence must be brought regarding his physical and mental condition at the time, and dependent he was on his environment.
How to file an objection to a will
The objection must be submitted to the Registrar of Inheritance in the office that the original application for the execution of the will was submitted. This is then transferred to a family court, who conducts a hearing that will examine the case until a decision is reached. The document must include:
- Name and ID of the objector
- Name and ID of the testator
- Names and IDs of all those involved and the heirs in the will
- An affidavit signed by a lawyer detailing the reasons for the objection
- Payment of a fee
Preparation of the annulment of the will
The court can legalize the drafting of a defective will, depending on the defect and the circumstances.
Accordingly, even when there is a certain defect that may obstruct the will’s annulment, the court can legalize the annulment. The court will consult the testator and can annul the will once it is convinced that the testator has made up his mind to annul it (Aharon v. Aharoni).
Improper involvement in the provision of a will that results in its annulment
Since testamentary freedom is a supreme value, we do not want any beneficiaries to be overly involved in the editing of the will. Improper involvement of a beneficiary in drawing up a will may result in the annulment of the provisions that entitle either the beneficiary or his spouse to inherit. Section 35 of the law specifies what constitutes improper involvement:
- The beneficiary is the executor of the will
When the beneficiary is the one who wrote, drafted or edited the provisions that entitle him or his spouse to the inheritance specified in the will, the provisions are void.
- The beneficiary serves as a witness in the “will before witnesses”
A “will before witnesses” is a will drawn up in the presence of at least two witnesses. The testator declares to the witnesses on a written document that it is his will. Provisions in the will entitling the witness or his spouse will be void.
- A beneficiary who took part in drafting the will
In the event that a beneficiary is involved to a significant extent in the drafting of testamentary provisions, the provisions entitling the beneficiary and his spouse will be null and void.
What is meant by significant involvement? In the ruling Hermon v. Golov it was established: “The examination of whether the beneficiary took part in the drafting of the will should be done with regard to each case and its circumstances and in view of the degree of intensity and severity of the beneficiary’s involvement in the drafting of the will. Common sense has also taught us that with the accumulation of events and relationships – each of them may not independently be seen as taking part in the drafting of the will – but by grouping them together in an “overview” of the whole, they create the same participation in its drafting that has grounds for disqualification”.
Exception: when it comes to an oral will (for a person on his deathbed), the above instructions do not apply.
It is important to note that the court has absolutely no discretion regarding improper involvement, since, if one of the conditions is met, that provision will be annulled. This does not allow the court the possibility to decide otherwise.
A will provision that is made using improper means
Section 30 (a) of the Law lists a number of situations in which a will provision will be void, when improper means are used for the purpose of making that provision. An invalid means is one of the following:
- Rape
- Threat
- Trick
- Scam
- Undue influence
“Undue influence” is one of the common grounds in the ruling for submitting an objection to the execution of a will. But what exactly is undue influence? There is influence that is permitted, and there is influence that is undue and prohibited. According to the ruling, there are four tests that can be used to understand and determine when an influence becomes undue:
- The independence test: Was the testator mentally or physically dependent on another person at the time of making the will or was he independent?
- The assistance test: If the testator did depend on another person, to what extent did that person help them? Were there other people who helped the testator as well?
- The relationship with others test: At the time the will was drawn up, was the testator in contact with other people or was he isolated from society?
- The circumstances during the drafting of the will test: Was the person who benefits from the will and who the testator was dependent on involved in the making of the will. If the answer is yes – what was the scope of their involvement?
Section 31 of the law states that if all the following conditions are met, the above invalid measures will not result in the annulment of a will provision made under the same pretext:
- The prohibited means/influence has passed.
- A year has passed since the invalid means ceased to influence the testator.
- The testator had the option of annulling the will throughout the same year
- The testator did not annul the will.
Provisions of a will and instructions related to its revocation
When we discuss the annulment of a will provision, which results from one of the reasons listed in this article, it is important to note that this is the annulment of the specific provision for which there is a reason for annulment. This is not about revoking other provisions in the will for which there is no reason.
However, there may be situations in which other instructions in the will may be annulled due to the reason for annulment that exists only in a specific instruction. This refers to the following situations:
- The provision is inextricably linked to the nullified provision.
- The testator would not want the provision to be fulfilled without fulfilling the nullified provision.
Interested in drafting a will? In issuing an inheritance request or a will order? Our office is at your service!
At our office, you will meet lawyers specializing in family law who are also qualified mediators. Our lawyers will help you draft a will that reflects your wishes and will accompany you through all of the necessary procedures until it is deposited. Our lawyers will also help you with requests to receive an inheritance or an order to enact a will and the procedures associated with it.
We want to achieve the best for you and, we therefore recommend contacting a lawyer who is an expert in the matter. Together, we can create a joint action plan in which you will receive appropriate guidance and training, as well as recommendations and professional legal representation. You can contact us via telephone at 055-9826594 or through the live chat on our website!