A will is a directive left by the deceased before his death, which usually refers to the manner in which property is distributed according to his wishes while he is alive. The law that regulates the instructions for its preparation and the guiding rules regarding inheritances and wills is the Inheritance Law 5725 – 1965.
From a legal perspective, there is no obligation to write a will, and in its absence, the law stipulates equal distribution, with members of the extended family – the deceased’s wife and children – given first priority..
However, it is recommended to draw up a will since it indicates the testator’s desire to distribute his assets as he sees fit in a manner different from that prescribed by law.
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In addition, the will has the power to prevent quarrels between family members, and therefore there is great importance in writing the document clearly and neatly according to the testator’s wishes.
Such a will is perceived as fair and unambiguous by the heirs. The freedom of choice given to the testator in the distribution of assets allows the testator to take care of his goals after his death and to prevent conflicts and legal disputes among the heirs.
In terms of legal validity, the law states that the will that was written last is generally the most binding.
Its content includes instructions from the testator regarding what will be done with his property after his death, both in terms of the distribution of the property among the heirs and in terms of the possible expenses that will be required after his death, all while specifying the components of the property and the order of priorities according to which they will be distributed (money, real estate and movable assets, securities, rights and life insurance).
In this way, the writer can instruct that first and foremost, some of the money will be dedicated to covering remaining debts and even expenses related to funeral arrangements.
In terms of property, the will determines the manner of distribution among the heirs. For example, granting all property to the spouse or dividing it among the children equally or in any other way according to the testator’s wishes.
Another stipulation enshrined in the will concerns the case of the death of the heirs. In the case of the death of the wife, it is customary to order the transfer of the estate to the children, and in the case of the death of one of them, God forbid, it is possible to order the transfer of the property to the grandchildren equally or at the discretion of the testator.
Additional details specified in the will are the validity of the document by virtue of it being the last document as stated, what property it applies to, and the name of the executor of the estate – usually a lawyer or a family member.
Common situations in which the need for a will arises are when a person wishes to distribute his property in a manner different from that stipulated in the inheritance law or under special conditions, and In divorce cases Or in a separation and in a situation of lack of heirs, when a person chooses to exclude members of his limited family from his will, or prefers to transfer the estate or most of it to one of the children, careful wording is important since the distribution of property is not equal.
Another case that requires writing a will is the decision to bequeath all assets to a non-profit organization or association that does not belong to the testator’s family.
It should also be drafted in situations where the person wishes to transfer their assets under the conditions they determine.
For example, bequeathing the apartment on the condition that it not be sold until the spouse’s death, transferring property to children only if they continue to maintain a religious lifestyle, etc.
It should be noted that the case law contains reservations regarding restrictions ordered by the testator for moral reasons, so the court does not approve conditioning the inheritance on an unreasonable change in lifestyle or without a logical justification.
For example, education in a way that was only acceptable to the deceased or divorce from the spouse.
Even in cases of divorce or separation, it is especially essential to make a will.
A person who is in divorce proceedings will refuse to bequeath his assets to the other party and, moreover, wants to ensure that some or all of his income will pass to his children or even to a future spouse.
In this case, precise and careful wording ensures that in the event of death, the estate will be transferred only to those relatives to whom the deceased expressed a desire to bequeath his property.
Similarly, it is recommended to make a will in the event of Known in public.
In this situation, the lack of a formal will may cause disputes and ambiguities regarding the status of the public figure and his rights in receiving the inheritance.
Therefore, the writer must clearly formulate how the estate will be divided between the publicly known person (or persons known) and the rest of the family members.
The same importance also exists when the testator has children from two partners, so he must define how the funds and assets will be divided between his children..
Another possible situation in which the aforementioned need arises is a case where the deceased left behind no first-degree relatives.
The law states that in this case the property will be transferred to the State of Israel, but it is of course preferable for the testator to determine what will happen to his estate.
4 types of wills according to Israeli law
Written will Written by the testator, who is also responsible for the date and signature. This includes the testator’s instructions regarding how his assets will be distributed upon his death, but may be considered legally incorrect since it is not usually reviewed by a lawyer when it is drafted.
Oral will It is considered legal in the case where the testator felt himself or was subjectively defined as dying, and declared his intentions before two witnesses who recorded the date of its utterance and the circumstances in a memorandum and deposited the document with the registrar of inheritance matters. This option is known in the legal term a will that is in bad taste.
Witnessed will Considered the most common, it bears the date and signature of the deceased and is signed by two witnesses. Since it is usually drawn up in a law firm, there is a high probability that it will be considered legal and that after the testator’s death the property will indeed be distributed according to his wishes.
Will before a court Includes an oral statement before a judge, registrar or notary, for which a written document has been prepared and one of the aforementioned officials confirms that it was prepared before him. The most recommended method is the one prepared before a notary (notarial will) since it has legal validity similar to a signature before a judge.
In order for a will to be considered valid and to clarify the true intent of the writer, it is important that it be considered a legal will – whether it is written or spoken. In order for a written will to be considered legal, it is important that the testator writes it himself and includes a signature and date.
Defects in the wording and the possibility of cancellation
Defects that may affect the legal validity of the will include the absence of the testator’s signature or the absence of the approval and signature of the two witnesses to the will, as well as cases where its content is not written in the testator’s handwriting.
Another will that includes defects that cannot be corrected is one that is given orally, in which the testator’s declaration was made before a single witness or for which no memorandum of the testator’s words was prepared.
Defects that can be corrected by the court are related to the date, signature, and change of wording. In a witnessed will – the absence of a date, a witness signature made at a later date, a change of wording from “This is my will” to another wording, and the signature of witnesses in an affidavit can be corrected.
In a written will – the absence of a date or signature and an incorrect date can be corrected. If it was given orally or before an authority, a memorandum that was recorded late, a will before 2 witnesses on different dates, and the absence of a certificate stating that the will was read or translated before the testator can be corrected.
Regarding the manner The interpretation of a deceased person’s willThe guiding principle is that in the case of a will that differs from the language of the law, the testator’s instructions are valid.
However, in the event of ambiguity in the wording, a clear and unambiguous interpretation is necessary. The central principle for its interpretation appears in Section 54 (a) of the Inheritance Law, according to which the interpretation shall be made in accordance with the “measure of the testator’s mind” – that is, according to the true will and intention of the deceased.
The interpretation should not be based on mere speculation, but rather the testator’s will must be proven on the assumption that it is possible to realize the measure of his will that expresses the linguistic meaning of the will.
Home Family Law It can be interpreted differently from its literal meaning only if it is convinced that the testator’s wishes cannot be fulfilled as implied by the wording of the will, or when the document has been flawed to the point that it is necessary to complete missing details or resolve contradictions. It should be noted that these corrections will also be made in the spirit of the will’s language.
The Inheritance Law also includes the option of revoking a will, which is addressed in section (36). According to this section, the testator may revoke a will by destroying it, expressly revoking it, or by drawing up a new will. The revocation may be made in writing or orally, in the presence of witnesses or before an authority.
In a handwritten cancellation, the testator declares in his own handwriting the cancellation of the will with a date and signature.
Oral revocation is made in a situation where the testator is defined as “lying in agony” – that is, feeling that he is about to die. In this situation, he orally announces to two witnesses who understand his message that he is revoking the express document he wrote.
A written revocation of a marriage is prepared in writing. It includes the date and signature of the testator after he has declared the revocation before two witnesses. The witnesses also sign the revocation to confirm that the testator has announced the revocation and signed it before them.
A revocation before an authority is made in the presence of a judge, registrar, or magistrate. One of these officials must read the revocation notice to the testator, and he declares to the authority’s representative that it is the revocation document.
Another way to cancel the will is, as mentioned, a new edit, which, although it does not explicitly declare cancellation, is considered to cancel the previous one as long as its provisions contradict those formulated in the previous will.
The issue of will disputes is usually related to the absence of a will, disagreements regarding the sale of transferred property, the presence of public figures, and wording that is not clear and unambiguous.
Intestacy is a common situation in the event of a sudden death where the deceased did not leave behind any written document regarding their property. In this case, a dispute may arise between the heirs, especially regarding assets that cannot be divided, such as a rare and expensive item or one with sentimental value.
Many arguments also arise regarding an estate that includes real estate. In many cases, one of the heirs expresses his desire to realize the property by selling it, but the other heirs oppose this.
Another example is a situation where it turns out that some of the descendants were excluded from the will. In that case, the claim may arise that when the will was written, the testator was under undue influence, such that he did not know what he was signing, or that the will contains defects.
The three main ways to resolve will disputes are a lawsuit in court, Mediation and arbitration.
Filing a lawsuit is done in the Family Court, which is the legal court that has the authority to rule in the field of inheritance disputes.
The court strives to resolve the conflict in light of the law and inheritance laws, and this is of paramount importance, especially in situations where there is no will, as the Inheritance Law and the regulations arising from it regulate the distribution of the inheritance equally among family relatives or when defects are discovered in the will document.
The distribution of the estate is defined by law according to an order of priority in section (10) of the Inheritance Law. First priority is given to the testator’s spouse at the time of his death, then the right is given to his children and children’s children, and finally – to his parents and their children (the testator’s siblings) and his parents’ parents and their descendants (the testator’s uncles).
In more complex cases, such as those known to the public or when the deceased left behind grandchildren but no children, a need arises for a will to be maintained. arbitration , which may resolve the conflict by appointing an arbitrator who listens to both sides, reviews the information, and makes a ruling at the end of the process.
In the event that those involved in the conflict attach great importance to maintaining healthy relations, a possible solution is the mediation process, which, unlike the court, which focuses on a solution within the framework of the law, takes into account the feelings of the parties and their personal and financial needs, and therefore enlists the help of the other party. Lawyer specializing in family law Also experts from the therapeutic and economic fields.
The mediation process also allows family members to lead the process, while the mediator is the facilitator who ensures good communication and dialogue between family members throughout the process.
