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Shabbat Parashat Chayei Sarah | 5768

P'ninat Mishpat

The Validity of a Will That Was Written Improperly - Based on Halacha Psuka - vol. 33 - Condensation of Shurat Hadin I - pp. 319-326

Case: Someone wrote a will that says as follows: “I, the undersigned, instruct that which will be with my property that remains after my death. All of my property should go after my death to Mr. X and Mr. Y.” The will was dated and signed by the man and two lawyers. Beit din was unsuccessful in determining who the halachic inheritors are.
Ruling: Since a will, in order to work, has to be a deed of gift, it is ostensibly invalid when it is to take effect after the writer’s death, as then he has no power to transfer assets, which are no longer his. However, here the will contains a date, in which case we can apply Rav Yossi’s rule that the date in a document is considered to clarify when it is to take effect (see Shulchan Aruch, Choshen Mishpat 258:1). In this case, where it is mentioned that the transfer will be after death, we will say that the kinyan (act of acquisition) begins at the time written in the document and is completed after death, which works. The Rama (ad loc.:2) does say that if the date is written in a matter of fact manner we do not apply R. Yossi’s rule. However, the Rama says that if the man tells witnesses to make a proper document, we assume that the date was written in a manner that it will have significance. That certainly applies here where the giver hired religious lawyers to craft the will. The Rashba, upon whom the Rama is based, also implies that this is so. Therefore, the will works as a present “from now and after death.”
 Let us investigate if there are other mechanisms that validate the will. Although the man died only a month after writing the will, we cannot say that it works as the instructions of one who is in danger of dying because it does not say that it was written during illness and we have no proof that he died due to an illness that he had at the time (see Shulchan Aruch, CM 251:2).
 The concept that it is a mitzva to fulfill the requests of the deceased only applies when the deceased had handed the money to one who was in charge of it, which did not occur here (ibid. 252:2). The Shulchan Aruch (CM 250:23) does, though, cite an opinion that does not require the money to be given over, and the Binyan Tziyon (24) says that if the inheritors of the estate do not have control of the funds, they can be given to the person assigned by the deceased. Therefore, in our case, where it is not even known who the halachic inheritors are, the money can be given to the assignees.
 Other halachic factors that were analyzed but are beyond our present scope include: the law of the land; analyzing people’s nomenclature; the fact that the inheritors are not known makes the estate like an lost item that is unable to be returned to its owner.
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