Inheritance Law, 1965 (hereinafter: “the Law”)
The practical question:
How to choose the appropriate way to change and/or add to an existing will? Should one write a new will, or is it enough to make an amendment or addition to an existing will?
There is no will without an order:
Section 39 of the Act expressly provides that a document known as a will has no effect as long as an order has not been issued: “Rights under a will may not be claimed and may not be required as a will unless an order has been issued per the provisions of Chapter 5”.
It turns out that the first step is to make a will following the law and the decree. However, we need to remember that it is not sufficient to make a will. It is necessary to obtain an execution order from The Registrar of Inheritance – which, before receiving, the will and its legality must be tested.
The legality of a will:
It is worth noting that not all a person’s last wishes as written in his will may be recognized, and this we learn from the decree, and also from the legislation, such as sections 33 to 35 of the law, where the legislature saw fit to emphasize that there are cases where a person’s will, will not be executed due to illegality and in the language of the law: Section 34: “An unlawful, immoral or impossible provision of a will is void”.
It turns out that among the other roles of the lawyer or notary facing the testator, another quasi-judicial role is added to decide whether the testator’s will be “moral” or “executable” and it seems to me that the most prominent example in this issue is Shlomo Avni v. the State of Israel – High Court 09/6167. The question that arose in this case, was whether to allow the body of the testator (Avni) to be thrown for animal feed. (Mr. Avni asked to dispose of his body for animal feed and, after his request was denied by the court, he asked that his body be thrown into the sea, which, by the way, was accepted.)
The legitimacy of the testator and the discretion of the attorney or notary:
Section 26 of the Act provides that “a will made by a minor or by a person who has been declared incompetent, or made while the testator did not know how to discern the nature of a will, is void.”
The legal profession does not include and does not require, knowledge in the field of psychiatry, and hence we learn that the legislature of a craft that is not part of his training, has fallen on the shoulders of a lawyer/notary.
Thus, rules have been established regarding the preparation of a will in cases where there is doubt as to the legitimacy of the testator, such as a requirement for medical approval when the testator is hospitalized, a problematic clause in itself that, to me, unnecessarily imposes a broad and comprehensive obligation. Despite the rules laid down in the law, there is still a large gray area of “broad and substantive discretion” for the recipient of the will, when facing the testator.
There are various approaches, including the approach that advocates excessive severity in any case of doubt. This approach may incur significant expenses to the testator in that it will need an (expensive) opinion in cases where there is no real need.
The less severe approach is also problematic, as a person’s will may be disqualified since it is doubtful whether at the time of making the will the testator was lucid enough to make his will.
There is no doubt that the recipient of the will must exercise focused judgment, and use his experience to decide which way he will advise the testator when drafting the will, and, in case of doubt, there is nothing wrong with refusing to make the will. He will also do well to clarify with the testator the circumstances of the making of the will, the testator’s control over the extent of his property, as well as his unmediated impression of that testator.
If an error is discovered in the will, how can it be corrected?
Section 25 (b) of the Law stipulates the basic requirements for making a legal and binding will:
(1) In a handwritten will as stated in section 19, the entire will is written in the handwriting of the testator;
(2) In a will in witnesses, as stated in section 20, the testator makes the written will in the presence of two witnesses;
(3) In a will before an authority as stated in section 22, the testator says the words of the will before an authority or the testator himself submits it in writing to the authority;
(4) In an oral will as stated in Section 23, the testator himself says the words of the will before two witnesses who hear him, while lying on his deathbed, or when he sees himself, in circumstances justifying it, in the face of death.
Section 25 (a) of the Law provides:
If the basic elements of the will are met, and the court has no doubt that it reflects the free and true will of the testator, it may, in a reasoned decision, uphold it even if there is a defect in the particulars, or procedures specified in Sections 19, 20, 22 or 23, or the legitimacy of the witnesses, or in the absence of any detail from the particulars or a proceeding from the said proceedings.
It can already be learned that the legislature has placed tools in the hands of the authority to fulfill the last wishes of the testator by correcting a defect.
The legislature also allows the authority to correct a real error, stated in Section 32 of the law, from which we learn that the work of interpretation is entirely in the hands of the Registrar of Inheritance or the Family Court: “If in the will there is a clerical error or an error in the description of a person or property, date, number, account or the like, and the true intention of the testator can be clearly determined, the Registrar
of Inheritance shall correct the error, or the court if the matter was transferred to it according to Section 67(a)”.
The emphasis is that the amendment will be made by the authority, and it will decide the nature of the mistake and whether to correct it or not after it has examined his true intention. The legislature gave itself, among other things, the power to examine a person’s intention after the fact in technical matters.
Not only in Section 32 do we find that the legislature conferred many powers of interpretation, but also in Section 54 the legislature gave the authority an option to give an external interpretation provided it meets the “estimation of the testator” test:
- a) “A will is interpreted according to the estimation of the testator as it is implied from the will, and in the case that it is not implied from it, as it is implied from the circumstances”.
- b) “A will that is open to different interpretations: the interpretation that fulfills it is better than an interpretation according to which it is void”.
Hence the title above, because if we make a correction to a will then when the time comes to execute, we will be presented with a will and an amendment of a will so that even if the testator intended to correct a defect, the authority still has the power to correct, and conversely not to correct. Thus, that correction may be voided and the testator’s intention nullified. Therefore, it is clear that as long as the testator is alive and is not prevented from making a new will, then a new will is preferable to any amendment. From experience, my advice would be that the testator should require that a copy of the revoked will be kept so that in the future the essence of the amendment may be learned, or at a later stage, the testator may wish to exclude someone from his previous will, to correct property details or to change beneficiaries’ portions.
The intervention of the Registrar and its powers under the law:
The legislature has granted the Registrar extensive powers in section 73(c): “The Registrar of Inheritance Matters shall have the powers vested in a Commission of Inquiry, under sections 9 to 11 of the Committees of Inquiry Act, 5768/1968, in so far as is necessary for the performance of his duties under this Act.” The main purpose of these powers is to enable the registrar to demand documents and completion of details when he is presented with an application for the execution of a will.
Language of the will:
A will should be a very clear document with no gray areas. This is a document that any lucid person will read and immediately understand the intent of the testator without being required to interpret, and, as the sages have already said “just as their faces are different so are their opinions” Every judge has his opinions!
The courts are divided, and there is no uniform ruling regarding the validity of an amendment or addition to a will made previously, using an accompanying document and not a new will.
From this, we learn that a will that is not completely clear can be interpreted contrary to the correct, full, and true intention of the testator because, as stated, there are several tools of interpretation and no one can be certain that the result the testator intended will always be achieved. As long as the will is ambiguous, so are the possibilities for different interpretations in the examination of the document.
In such circumstances, as long as the testator is legitimate for making a will, a new will is preferable to amending or adding to the existing will, because Section 36 explicitly states that a person’s last will cancels its previous one even without a clear indication to do so: Clause (b) “A new will, even if It does not explicitly repeal a previous will, is considered to invalidate the previous one to the extent that the provisions of the new will contradict the provisions of the previous will unless there is nothing in the new will but an addition to what is stated in the previous will”.
The risk inherent in amending or supplementing an existing will in no way justifies refraining from drafting a new, complete document in which the testator will dictate his wishes as a new document.
We conclude that when making a will the testator will do well if he consults a lawyer who is knowledgeable in the law before making his will so that his last wishes will be fulfilled correctly and properly. Consultation with a lawyer should also be helpful when it comes to an existing will, taking into account tax and other considerations that we will expand on another time.