Shabbat Parashat Yitro 5784

P'ninat Mishpat: Should the Will be Updated? – part I

Case: Reuven and the defendant (=def) were married in a second marriage for each. Reuven wrote a will, leaving his main possession, a large, commercially used building, exclusively to def, and not to his children (=pl). Pl claim that in the year before his death, Reuven expressed several times to his children (sometimes in def’s presence) that he wanted them to receive significant portions of the inheritance. After his death, def also expressed her plan to give pl significant proceeds from the sale of the building, if she sold it. After operating the business for a few years, as Reuven wanted (claiming she did so as long as she was capable), def sold it for 1.6 mil. NIS. [Part I deals with the claim that Reuven meant to give pl an inheritance, despite the written will]. Pl say that once, when Reuven was in a quite good state of mind (which declined over time after writing the will), he told a son and his lawyer that he wanted pl to receive 60% of the property with def and her children receiving 40%. One of pl claims that Reuven gave him a note detailing who would receive each part of the property. Pl presume that the will was written under def’s pressure, and that his main reason for giving the whole property to def was that he wanted her to operate his beloved business. Def admits some of Reuven’s sentiment that his children share the inheritance, but she denies that there were specifics. She also points out that often, Reuven was not mentally fit.

Ruling: If Reuven orally bequeathed parts to pl in the midst of his final illness, it is considered a matnat schiv meirah (=mscm), which is binding in certain cases in which such a gift during a time of health would not be valid (see Shulchan Aruch, Choshen Mishpat 250). The Rosh (Shut 83:4) says that the recipient needs witnesses for the mscm unless the gift is in his possession (in which case migo increases his credibility).

There is a machloket why the Rosh requires witnesses. According to the Ginat Veradim (5:12), the witnesses are not needed to validate the present but only to prove it occurred. However, The Maharam ben Chaviv (13) said that the witnesses are needed to give the declaration a status of a serious, binding gift. The difference between the approaches is in cases where the existing inheritors admit a mscm was done. Maharam ben Chaviv does agree if the inheritor admits the mscm was done with a high level of intent.

In our case, we cannot know now the level of intent in Reuven’s statements or whether he spoke that way to appease his disappointed children. In any case, def denies that there were any specific, definitive declarations. Although there was a claim of a hand-written “document,” pl did not produce it. Additionally, def claimed that Reuven was then incapable of writing such a document. Furthermore, pl admit that during that period of time, Reuven’s level of cognizance was not strong.

Therefore, clarifications of Reuven that contradict his will, which was certified as binding, lack legal standing.

We continue next time with analysis of def’s agreement to share the inheritance with pl.

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