Shabbat Parashat Vayishlach | 5768
A Will That Was Not Publicized - Based on Halacha Psuka - vol. 34 - Condensation of a p’sak from Piskei Din Rabbaniim XVII, pp. 207-270
[The following p’sak does not represent the mainstream halachic approach to wills, but it is worthwhile for our readership to know that such p’sakim do exist.]
Case: A man wrote a will leaving some money to his daughters and granddaughters and the rest to tzedakah (but none to his sons). The will was left by his lawyer, who was the only person who knew it existed. The halachic inheritors questioned its validity.
Ruling: A person’s signature on a document usually works as situmta (a kinyan based on accepted practice). However, there are a few possible limitations to consider. Although the Maharshal and Divrei Chayim say that situmta works even for davar shelo ba la’olam (future interests) when that is the minhag, the Mordechai, Radvaz, and K’tzot say that it does not, just as other kinyanim do not. Beit din decided that the matter remains an unsolved doubt. The Netivot Hamishpat, argueing on the Maharshdam, says that situmta does not work in regard to money owed to the person who is giving over its rights. The Shulchan Aruch and Rama seem to argue whether situmta works for land. Therefore, in regard to all of these types of property we will not be able to extract the property from the possession of the inheritors.
The Rama (CM 203:10) brings three opinions regarding a single document that includes elements for which the kinyan should work and others for which it should not, whether we say that it works for all, works for none or works only for that for which it naturally should. Therefore, we again do not escape a case of doubt whether the will would work for anything.
Another issue is that the will was done secretly. The Shulchan Aruch (CM 242:3) says that if witnesses are not told to make a present public, it is not valid. Although later (ibid.:5) he says that in the standard case it is considered like public, in our case it was done specifically privately. According to the Pitchei Teshuva (ad loc.:1) it is again a doubt, for which we could not extract payment. Since the lawyer represented the legal interests of the deceased, he is considered like an extension of him and we have to consider the possibility that the giver backed out of his obligation.
The Shulchan Aruch (CM 282:1) says that whoever gave his property to people other than his inheritors is not doing the right thing. The Rosh says that this includes leaving inheritance to daughters rather than to sons. In this case, the deceased did not leave anything for his sons. Therefore, if we can interpret the will in such a way that it does not effectively exclude them, we should do exclude them, so as not to make him into one who did the wrong thing.
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