Shabbat Parashat Vayakhel Pikudei | 5770
P’ninat Mishpat: Conflicting Wills in Regard to a Home
condensed from an unpublished p’sak of the Gazit Beit Din of S’derot)
Case: A brother (=def) and a sister (=pl) dispute the rights to an apartment that was registered in the name of their deceased mother. Amigur (a subsidiary of the Jewish Agency) offered the mother (exclusively) to buy the apartment she lived in. She did not have enough money, so def paid for it. Def claims that since he had financial problems, he gave the money only with the understanding that he would receive the apartment after her death. Def also presented an old will and a full authorization and letter of intent, witnessed by a lawyer, for def to take over the apartment. Pl presented the most recent will in which the mother left the apartment for pl and an affidavit attesting that her previous giving of the apartment to def was extracted by trickery.
Ruling: The fact that def financed the purchase does not make the apartment his, especially when considering that the sellers, Amigur, gave the special price only to the mother, as the long-time occupier of the home.
According to the great majority of poskim (and the law of the land) the document transferring rights to def does not have the effect of a kinyan (property transfer) as long as a change of ownership was not registered in the Tabu (Land Registry), which did not occur. There is generally room to discuss whether a contract that obligates one to sell a property where an actual kinyan did not take place creates just a personal obligation (which would end with the mother’s death) or whether it takes effect in some way in regard to the property itself (and remains valid after death). Since the authorization in this case was irrevocable, it clearly has an impact on the property.
The later will, in pl’s favor, does cancel previous wills. However, since a will is not binding in the classical way, but just creates a “mitzva to fulfill the words of the deceased,” this mitzva is supplanted by the (albeit, incomplete) rights to receive the property that def enjoys.
The claim that the mother had been tricked into the contract is not valid. Even had the mother made the claim for her own sake during her life, it would not have been accepted. One who signs a contract needs proof that he was tricked into a contract. Otherwise, contracts are to be taken at face value (Shulchan Aruch, Choshen Mishpat 68:2). Proof was not provided, and to the contrary, a lawyer signed to the fact that he explained to the mother what was included in the document.
In addition to all of the above, def is the inheritor according to Torah law, and pl has the burden of proof that her claims to the property allow her to receive it over def. This is all the more difficult after legal papers irrevocably leaving the apartment to def were not effectively refuted.
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