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Shabbat Parashat Eikev | 5769

Ask the Rabbi: Making a "halachic will"

Question:I am working on a client’s will. He wants the contents of his home to be divided among his children in the following manner. They should divide the contents by consensus. Regarding items about which agreement is not reached, a system of lots should be used, whereby whoever wins the lottery gets the object. How can this be phrased so that it will be halachically binding, as there seems to be a problem of bereira (retroactive determination) when giving objects to an unknown person?

Answer: There are four theoretical ways to go about accomplishing this end result. We will explore very briefly which one(s) works and suggest how to proceed most simply.

The manner that you seem to be assuming is that the father will transfer his property during his lifetime to his children in a manner that what he is giving to whom will be determined based on some later event (the lots). This does appear to be an issue of bereira - that it is a problem to give something to a person whose identity is yet to be determined. One example is when one gives rights in a Korban Pesach only to the son who arrives first in Yerushalayim, which works only if one posits that bereira works (Pesachim 89a). We assume that bereira does not work in regard to Torah laws (Beitza 38a). The same applies when the people are determined (e.g., his children) but the objects they will receive is not. A famous application is close to home. The Land of Israel was divided by lot to the first generation and, after death, divided among their descendants. The gemara says that if we hold that bereira does not work, we will not say that each one received the part that was destined to him, but that each inheritor “sold” his rights to the other (Gittin 25a). Thus, this system is problematic.

There is a concept that one can, before he dies, create a duty upon his inheritors to follow his instructions regarding dividing his estate. This concept is called mitzva l’kayeim divrei hamet. However, this is a moral obligation, not a legal transfer of monetary rights and the cases to which this applies are limited (see Shulchan Aruch, Choshen Mishpat 252:2 and Shach ad loc.:7). Thus, this too is an unreliable system.

Another potential approach is to give the children all the property as equal partners but impose upon them a certain system of dividing the property. If partners can create conditions for their mutual rights in the partnership, then one who gives them their joint rights should be able to impose the same conditions. On the other hand, the gemara (Bava Batra 3a) says that it is too abstract (kinyan devarim) for partners to promise to divide land in a certain manner that is otherwise not halachically prescribed. Since development of this issue is complicated beyond our scope, let us present the following straightforward solution.

The whole idea of wills in which the division will not follow the Torah’s standard guidelines (e.g., daughters receive a portion; the firstborn does not get double) has for several hundred years employed a system called a shtar chatzi zachar (which you probably use in writing halachic monetary wills). (See Rama, CM 257:7, whose ruling is a main basis of the practice.) It basically works by the father admitting that he owes a large sum of money (or creating the obligation) to each of the desired “inheritors.” The obligation becomes payable right before his death and is binding on his inheritors unless they fulfill the instructions that he leaves behind in a written will. The inheritors choose between paying the large sum and following the instructions. The instructions are not bound by halachic issues such as bereira because the straightforward monetary obligation already exists and they only determine whether the conditions of removing it have been fulfilled. Therefore, you can use a regular “halachic will” format and have the specific part of the instructions clear in conforming to your client’s interests.


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