Heir’s liabilities according to the deceased’s will
Section 45 of the Inheritance Law states that the testator may instruct in his will about things that the heir must do or refrain from doing with what was received as part of the estate assets.
Anyone interested in realizing the obligation appearing in the will may demand it, including an obligation that is of public interest.
A ruling that illustrates Section 45 is A”A 87/ 545. The background to the case is the couple Shimon Zeev Kastner and Yehudit Reiter, who had been living together without marriage since 1968. In 1971, each of them Will The order leaves all property to the spouse.
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At the same time, Judith Reiter added in her will: “…I bind Shimon Zeev Kastner, that from the property he inherits from me based on this will, he will bequeath to Daphne Greenberger, my sister’s granddaughter… whatever remains after my death.“.
It was ruled that this provision of the testator is included in Section 45 of the Heir Appropriations Law.
Unlike Section 45, which means that only through the actions of the first heir, for which he received instructions from the testator, will a third person benefit, Section 42 of the Inheritance Law allows the testator to bequeath the estate to the first heir, and whatever remains of it after the death of the first heir will be transferred to the second heir.
Therefore, the meaning of the section is that a third person can directly inherit the remainder of the estate, without being conditioned by the actions of the first heir.
Examples from court rulings on heir charges
The difference between sections 45 and 42 of the Inheritance Law can be understood from a ruling in the case of Moshe David Simcha – a presumed ruling – T.A. 3139/01, which deals with the right of a second heir, in a will that includes a provision for one heir after another.
The deceased’s will contained a restrictive provision according to which the first heir, who is also the defendant, will refrain from selling his rights in the apartment to others and will also be obligated to transfer these rights in the future to any of his sons who were born during the deceased’s lifetime.
It was ruled that once the first heir has been granted after the testator’s death, the decision on how to proceed with the apartment rests with him, according to Section 42B of the Law. Likewise, even if the defendant knew that the deceased had directed that the rights in the apartment would be transferred to his sons in the future, this should not limit his right to act in the estate he received as his heir.
However, since, according to the law, the testator may stipulate to section 42 and impose restrictions on the ability of the first heir to do with the estate as if it were his own, and in light of the fact that the deceased expressly ordered that the first heir be prevented from selling his rights in the apartment to others and be obligated to transfer them to any of his sons born during the deceased’s lifetime, it was ruled that the restrictive provision in the will prevails over the provision in section 42B of the law and that the defendant cannot transfer the apartment to a third party, except for his sons.
Obligation or condition – Section 43 of the Inheritance Law for Communities Section 45
Regarding the difference between an obligation and a condition, Section 45 refers to an obligation that the testator commands.
The non-existence of the obligation does not affect the provision, and it continues to exist even without the fulfillment of the obligation. On the other hand, the failure to fulfill a condition in the will’s provision may result in the cancellation of the provision, and hence an obligation is weaker than a condition, but anyone interested in fulfilling the obligation is entitled to claim its existence.
Another distinction used on the subject of heir’s liabilities is between Section 45 and Section 43 of the Inheritance Law.
According to Section 43, which relates to a deferral condition, the testator can instruct that an heir will be entitled to all or part of the estate, if a certain condition is met or if a certain date arrives, for example, the grandchildren will be entitled to part of the The inheritance Only upon reaching the age of 18.
On the other hand, Section 45 refers to the obligations imposed on the heir to act with the assets of the estate, where failure to fulfill the obligation does not necessarily undermine the provision, since most of the provision deals with the transfer of the asset and not the obligation.
Therefore, the meaning of the term revocable condition is that the heirs can receive the estate only when the condition is met and the assets are retained by the trustee until then.
The term obligation, on the other hand, refers to a situation in which the heirs are entitled to the inheritance immediately, but are obligated to fulfill the obligation imposed on them.
The verdict Ra’a 95/ 5715 Addresses the question of whether the restriction that appeared in the deceased’s will is a revocable or binding condition.
In this case, the deceased restricted the right of the heirs to inherit his property and enjoy it in the provisions included in Section 2 of the will:
“…all my property will be given to my brother’s children on the condition that the entire fund of property and its fruits remain in Israel and will always be invested in Israel. My brother’s children will be able to enjoy the fund and fruits only in Israel. In the event that one or more of my brother’s children come to settle in Israel, they will be able to enjoy and use the inheritance as they please.”
As stated, the discussion revolved around the question of whether the restriction is a prejudicial condition as specified in Section 43 of the Inheritance Law, in which case the heirs are not permitted to inherit until the condition is met and the estate will remain in the hands of the trustee until the condition is fulfilled, or whether it is defined as an obligation, as specified in Section 45 of the same law, in which case the heirs can receive the assets immediately, but they must meet the obligation imposed by the testator, which means investing the assets only in Israel.
It was ruled that the restriction can be divided in such a way that the condition at the beginning of the restriction, defined as the right of enjoyment, is an obligation and the condition at the end, defined as the right to inherit, falls under the category of a repudiatory condition. The reason for this is that the enjoyment of the property is immediate and unconditional but involves an obligation and the right to inherit in the future is conditional on the fulfillment of the condition.
Since none of the heirs settled in Israel, the trustee, who oversees the implementation of the provisions of the reservation, rejected their requests to receive ownership of the estate’s assets.
Regarding conditions regarding property that is not part of the estate, Section 45 refers to the heir’s obligation to act only on what he received as part of the estate.
Therefore, a person cannot leave a will regarding property that is not his, but if the testator conditioned the acquisition of his assets on the heir transferring his property to another, an heir who wants to get rid of a condition that requires him to transfer his property to another will also have to disassociate himself from the property he acquired.
In these cases, the heir can choose between accepting the will, while taking responsibility for carrying out the testator’s instructions regarding the assets to which he has been entitled, and between the option of waiving the will completely, including the instructions that entitle him to the assets.
In light of the fact that the testator may direct in the will that the heir’s rights be limited to the conditions specified in the will, the issue of interpreting the condition in a restrictive manner arises.
Read more about: Interpretation Will
In the verdict Jerusalem 84/39, the question was examined as to whether the condition should be interpreted narrowly or broadly. In this case, the deceased left a provision, regarding an apartment she left to her son, according to which the heir would not be able to sell the apartment to the tenant living in it.
Upon her death, the winner of the apartment transferred the property to his son, and the son immediately signed the sale documents of the apartment to the tenant living there.
The question discussed in court was whether the fact that the winner did not sell the apartment himself to the tenant but did so through his son was a circumvention of the condition or whether the condition could be interpreted so that this action did not cause its violation.
It was determined that the restrictive conditions should be interpreted in a restrictive manner, so that the prohibitions imposed by the deceased are personal and do not constitute a lien or permanent restriction of the ownership rights in the apartment.
The statement in the 1952 Inheritance Bill that “the rule of the deceased over the living must be limited” is a statement that implies that the deceased’s control over his property and the ownership rights to this property can be limited. Therefore, in the case at hand, the court preferred the restrictive interpretation and ruled that the indirect sale of the apartment does not constitute a prohibited circumvention of the condition..
Section 45 of the Inheritance Law also allows for supervision of the fulfillment of the provisions of the will. In a judgment Tel Aviv 01/ 00304 In 2002, before Judge Yehuda Granit, a case was heard in which the deceased and the defendant bequeathed all of their property to whichever of them remained alive, but within the framework of the condition that the surviving spouse would use the estate for his own needs only, without transferring it to others or their needs.
The plaintiff, the deceased’s son from a previous marriage, filed a lawsuit seeking measures to protect his rights within the framework of supervision of the provisions of the will. Judge Granite ruled that the plaintiff’s concerns were justified and that even though the defendant claims that she does not intend to violate the provisions of the will, this does not prevent the issuance of an order.
This is a temporary injunction of the QUIA TIMET type, the purpose of which is to provide a remedy for a breach when there is a reasonable fear of the heir violating the provisions of the will.
It should be noted that the defendant will not suffer any harm from taking a measure that protects the plaintiff’s future right, perhaps only the inconvenience of having to convince the estate administrator of her needs or the plaintiff in the event that the court issues a restraining order or a warning notice is recorded.
On the other hand, the plaintiff is expected to suffer serious damage if the assets of the estate that could have reached him are taken from him by the defendant, due to fulfilling her needs in violation of the will.
Finally, the judge ruled that Section 45 was intended to allow the plaintiff to supervise the implementation of the will’s provisions, so that the defendant would use the estate’s assets only for her needs and wants.
Regarding the money and rent received by the defendant, they are not a particularly high amount and it can also be relied upon that the defendant will use them only for her needs, but in the matter of the apartment, for which the defendant inherited half of the lease rights from the deceased, the plaintiff must be granted relief by ensuring that he is given the opportunity to oppose the sale of the apartment if he proves that the defendant intends to transfer the rights in the apartment for purposes other than her needs and wants alone.
Supervision will be done by registering a note in the land registry or in the Israel Lands Administration, according to which the rights in the apartment will not be transferred before the land registrar or the administrative official responsible for transferring the lease rights is satisfied that the request to transfer these rights in the apartment has been duly submitted to the plaintiff.
After it is determined that the notice was duly served, the plaintiff may apply to the court, within 30 days of the date of service of the notice, to obtain an order preventing the transfer of the rights in the apartment. If a restraining order is not presented to the Land Registrar or the Israel Lands Administration on the specified date, then the rights in the apartment will be transferred at the defendant’s request. The measure described constitutes a restraining order against the defendant and a positive order against the Land Registrar.
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