Shabbat Parashat Nitzavim| 5765
Dispute Over Implementing a Will - Based on Piskei Din Rabbaniim - vol. XIX, pp. 1-5
Case: A son and daughter agreed on an arbitrated settlement to divide the inheritance left by their mother (approximately evenly). Subsequently, someone brought forward a will giving the daughter most of the mother’s jewelry in addition to half of most of the property.
Ruling: The will makes no mention of a kinyan done to validate it halachically as a present during the mother’s lifetime. According to the Rama (Choshen Mishpat 250) if the one giving the “present” was healthy at the time, the will is invalid. However, there are opinions that validate such a will. The Beit Yosef brings the Mordechai that if the will says that the property should be given after death, then it is valid without a kinyan. The Ikarei Hadat (OC 21) says that if the will was given in document form, then we know that he was serious and the will stands until retracted. Also, the daughter asserts that when the mother was sick, she told her daughter to physically take the jewelry, which she did. This cannot be confirmed or disproved.
In general, in a case of dispute between a questionable recipient of “inheritance” beyond Torah law and the normal inheritor, the inheritor is muchzak (in possession until proven otherwise) (Choshen Mishpat 251). However, in this case, the daughter took physical possession (tefisa) of the jewelry. Tefisa can make a difference in a few ways. If there are no witnesses that the tefisa has occurred, then one can make a migo. In other words, he can say: “Believe my account of the events, because if I wanted to, I could have hidden the fact that I took the object.” However, in this case, she is not able to deny possessing the objects. At times, one can claim that physical possession of an object is a strong enough indication of ownership that he is believed to say that he obtained ownership of it legally. However, regarding those objects that are often lent or given over for safekeeping, possession is not a sufficiently strong indication of ownership. In this case, if the daughter had simple access to her mother’s jewelry, her possession does not significantly bolster her claim that her mother gave it to her as a present.
However, there is a further application of possession. When there is a dispute among (post-Talmudic) poskim as to who deserves something, if one took hold of the property in question, even after the question arose, possession gives him the advantage to keep the object based on status quo (Netivot, Klalei Tefisa 20). That element of tefisa does exist in this case (as the Mordechai and others validate the will) and the daughter’s claim is accepted.
Even though a compromise was made, since it was arrived at before the daughter was aware of the will, which strengthens her position, she can back out of the compromise (Shulchan Aruch, CM 12:14-15).
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