Shabbat Parashat Mishpatim 5784

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

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 pl (sometimes in def’s presence) that he wanted them to receive significant portions of the inheritance. After operating the business for a few years, as Reuven wanted, def sold it for 1.6 mil. NIS, (claiming she kept it going as long as she could). [We saw that there were not grounds to invalidate Reuven’s will. Part II deals with def’s commitment to give some of the sale’s proceeds to pl]. Pl demand 60% of the sale’s proceeds, as def promised them several times after Reuven’s death, as she mentioned in WhatsApp messages. Def admits making the commitment, albeit without a formal document or act of kinyan. She claims that it is only for the following reasons that she refuses to keep her word. First, she thought she would be able to sell the property for housing, which would have brought in much more money; she needs the entire amount she received for her own support. Also, since making those assurances, she invested a lot of time and money into the property, due to which she deserves full proceeds. Finally, pl have asked their share from the gross sales price as opposed to her net returns (deductions include taxes and agent’s and lawyer’s fees).

Ruling: Def’s promises appear to be oral gifts, which are not enforceable in beit din (Shulchan Aruch, Choshen Mishpat 189:1). However, monetary oral promises can sometimes create a moral obligation, which beit din needs to explain to a party who wants to back out of it (ibid. 204:7). However, the halacha (ibid. 8), based on an opinion in the gemara (Bava Metzia 49a), is that there is no moral obligation to keep the promise on a large gift, because people do not rely on such generous assurances. While the cutoff point for a large gift depends on the giver’s means, this case’s hundreds of thousands of NIS certainly constitutes a large gift.  

On the other hand, here def was not promising a simple present but a means to settle a brewing legal dispute (over inheritance). Because of this and, additionally, because at the time of the commitment all believed that def would be able to keep her promise, there should be a moral obligation.

A factor to exempt def is that, in general, there is a machloket whether oral promises are still morally viable if the financial logic behind the promise changed substantially (Rama, CM 204:11). While the Rama sides with the opinion that it still applies, many poskim disagree, thus weakening any moral obligation (Aruch Hashulchan CM 204:8). Furthermore, due to the fact that the assurance was not immediate but depended on a future event (the sale), in a manner that a kinyan could not have been legally binding, many dismiss the moral obligation without a kinyan.

While def is not required to pay anything to pl now, beit din suggests that if the family relationships return to being good, def should bequeath to pl in her will, part of the home that she bought with the sale’s proceeds.

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