45. Wills

The purpose of a will is to permit the living to provide for those who come after him or her. By “willing” their estates, individuals can control the way their property is distributed after their deaths. If an individual dies without a will and without heirs or relatives, however, the estate escheats to the state. A will is thus a way to keep the estate in the hands of family and/or loved ones, and out of the hands of the state.

Over the years, the law of wills developed into a very mechanical, strict set of rules generally uniform among states that safeguard against unscrupulous heirs who may forge or tamper with wills for financial gain. Virtually all states require the testator (the person making the will) to be over eighteen or “an adult,” the will must be typed or printed, and the only writing permitted on the document is the signature of the testator and witnesses.

Some noteworthy types of wills are nuncupative and holographic. Nuncupative wills are oral testaments with a very special, very limited purpose. Typically, the oral will has the power to dispose of only a limited amount of personal property. The original purpose of this type of will was to permit mortally injured soldiers or sailors to give gifts of personal property to their comrades-in-arms. This provision is still reflected in many of the nuncupative statutes; it permits a dying individual to grant specific bequests to friends who may have cared for him during his last injury. Only nineteen states still recognize nuncupative wills, and the number is slowly shrinking.

Holographic wills are testaments that are entirely handwritten instead of being typed or printed. They are generally not as formal as typed wills and are therefore more suspect by law, for a greedy heir may more easily be able to persuade the testator to hastily write out a will without the proper amount of counsel or reflection. It is for these reasons that holographic wills are looked upon with general disfavor, are subject to closer scrutiny, and are less commonly recognized than other wills.

Traditionally, the law of wills has been very slow to change but even it has begun to feel the impact of the “computer revolution.” Nevada, in 2001, added statutes that recognize “electronic wills,” apparently becoming the first state in the union to do so.

WILLS

WILLS (Heb. צַוָּאָה). A will is a person's disposition of his property in favor of another in such manner that the testator retains the property or his rights to it until his death. There are three different forms of wills, each governed by different legal rules as regards their time of coming into effect and their scope and manner of execution. These are mattenat (or ẓavva'at) bari, i.e., a (literally) gift by a healthy person; mattenat (or ẓavva'at) shekhiv me-ra, i.e., a gift by a person critically ill; and meẓavveh meḥamat mitah, i.e., a gift in contemplation of death. There are detailed biblical provisions regarding the legal order of *succession (Num. 27:8–11; Deut. 21:16–17). However, save for isolated hints (see e.g., Job 42:15), there is no biblical provision regarding the possibility of a person determining the disposition of his property after his death in a manner not according with the rules laid down for the legal order of succession.

Mattenat Bari

A person who wishes to give his property to a person who is not his legal heir must divest himself of it during his lifetime so that the property shall not, on his death, automatically be dealt with in accordance with the laws of succession (Rashbam, bb 135b). He may, however, donate the body of the property by way of a gift taking immediate effect, while retaining for himself the usufruct of the property until his death (bb 8:7: "From today and after my death"). This is a mattenat bari. In form this disposition by will is identical to donation in the case of regular gift. Since the legator transfers his property to the legatee "from today," he may not afterward retract from the will, although the legatee only becomes entitled to the usufruct of the property after the legator's death (Sh. Ar., Ḥm 257:6, 7). A will from which it may be inferred that the transfer (*kinyan) is "from today and after death," is regarded as one in which these words are expressly stated (bb 136a; Tur and Sh. Ar., Ḥm 258). It is not possible for the legator to bequeath by way of mattenat bari any property except that which is then in his possession (Rema, Ḥm 257:7; see also *Contract). If the legator employs the words, "from today if I should not retract until after my death," or "from today if I do not retract during my lifetime," he is free to retract from the bequest (Tos. bm 19b; Sh. Ar., Ḥm 257:7).

Mattenat Shekhiv me-Ra

A shekhiv me-ra is a person who is "ill and confined to bed." According to Maimonides, a shekhiv me-ra is "a sick man whose entire body has been weakened and whose strength has waned because of his sickness, so that he cannot walk outside and is confined to bed" (i.e., critically ill; Yad, Zekhiyyah 8:2). Unlike the mattenat bari, the provisions of a mattenat shekhiv me-ra come into effect on the death of the legator (ibid.), since the scholars enacted that the latter form of testacy should be regarded in law as a form of inheritance which comes into effect on the benefactor's death (bb 149a). The scholars enacted far-reaching alleviations with regard to the formalities of conveyance by mattenat shekhiv me-ra, dispensing with the need for a formal kinyan since "the instruction of a shekhiv me-ra has the same force as a document written and delivered" (Git. 13a) and because this was a takkanah of the scholars aimed at easing the mind of the sick person (Yad, Zekhiyyah 8:2). The wishes of the testator may be expressed orally or in writing, or by implication (bb 156b; Git. 15a; Sh. At., Ḥm 250:7). The will may be an unwitnessed, handwritten deed, to be delivered to the beneficiary (Git. 71a; see Yad, Naḥalot 4:1).

If this form of will is formulated orally by a shekhiv me-ra before witnesses, the latter may reduce its terms to writing for delivery to the beneficiary. The delivery may take place during the testator's lifetime or after his death, since this instrument is written solely as a record of the testator's oral statements which immediately on recital take effect as the will (Sma, Ḥm 253, n. 77).

The special validity which attaches to a shekhiv me-ra will is forfeited if the testator should employ one of the regular forms of kinyan for gift (Ket. 55b), since in so doing he manifests his intention to effect no more than a regular mattenat bari. This result would follow, for instance, if the benefactor should effect a kinyen sudar or ḥazakah, a lifting or pulling, or a gift aggav karka (incidental to land generally; Tos. bb 152a; Tur, Ḥm 250:28; Yad, Zekhiah 8:10, 11; Sma, Ḥm 250, n. 54), or, similarly, if he should draw up a deed, or declare his will and tell the witnesses to draw up a deed for delivery to the beneficiary (Yad, Zekhiyyah 8:12, 13). If the testator declares, orally or in writing, that his resort to a kinyan customary for a gift is meant to add rather than detract from his true purpose (a procedure known as yippui ko'aḥ), or if it should be apparent that he erroneously believed a kinyan was required to effect a mattenat shekhiv me-ra, the fact of the kinyan will not detract from the validity of the will as a mattenat shekhiv me-ra (Taz, Ḥm 250:17).

The will of a shekhiv me-ra is valid only if the testator "gave all his property and left nothing [for himself]; but if he left a part it is like the mattenat bari which is only acquired by a formal kinyan." The explanation for this is that a shekhiv me-ra who only disposes of part of his property does not do so in the expectation of his death – otherwise he would dispose of all his property; hence it is inferred that he intends to make a regular mattenat bari, which leaves no room for application of the rabbinical enactment that his instruction "has the same force as a document written and delivered" (Sh. Ar., Ḥm 250:4; bb 151b). At the same time, even if a shekhiv me-ra leaves part of his property (for himself), his disposition will require no kinyan if it is made meḥamat mitah – that is, when it appears from his statements, explicitly or implicitly, that the disposition is made by him in the apprehension of death (Sh. Ar., Ḥm 250:7; bb 151b). This is in fact the position in practically every case of a will made by a shekhiv me-ra. The will of a shekhiv me-ra may be retracted from by the testator (Yad, Zekhiyyah 9:15) by way of his oral or written expression of the wish to revoke the will (Rashbam, bb 152b). The revocation need not be express and will be implied if the testator makes another will relating to the same property (tj, bb 8:7, 16b; bb 135b; Yad, loc. cit.). Revocation of part of a will is regarded as a revocation of the whole (bb 148b), and the same consequence follows if the testator should will his estate to several persons and afterward revoke his bequest to any one of them (Rema, Ḥm 250:12). The will of a shekhiv me-ra is automatically revoked on the latter's recovery from his illness (Git. 72b), notwithstanding any prior express stipulation by him to the contrary. This is explained on the grounds of an enactment by the scholars that the expressed wishes of a shekhiv me-ra should be fulfilled out of apprehension for the mental agony which the latter might suffer if left in doubt about the fulfillment of his wishes; hence, on his recovery, the justification for the takkanah falls away, since he is once again in a position to make the disposition in any manner he desires (Resp. Rashba, vol. 1, no. 975).

Meẓavveh Meḥamat Mitah

The scholars widened the concept of a shekhiv me-ra in recognizing as equally valid the will of a "healthy" person if made meḥamat mitah, that is, in contemplation of death – mortis causa. A "healthy" person is regarded as having willed his property meḥamat mitah in one of the following circumstances: when he is seriously ill (even though he does not fall within the definition of a shekhiv me-ra – see above); when he is about to be executed under the law of the land; when he sets out with a caravan on a desert journey; and when he leaves on a sea voyage (Git. 65b, 66a and Rashi ad loc.). These four circumstances correspond to those in which it is incumbent to offer thanksgiving to the Almighty (Psalm 107; Ber. 54b). A disposition meḥamat mitah requires no formal kinyan, whether it relates to all or only a part of the testator's property (Yad, Zekhiyyah 8:24; Sh. Ar., Ḥm 250:8). The manner of evolution of the law concerning a meḥamat mitah disposition is described in the language of the Mishnah, pertaining mainly to the laws of divorce but extended also to the laws of wills, as follows: "At first they used to say: If a man was led forth in chains and was about to be executed under the law of the land and said, 'Write out a bill of divorce for my wife,' they would write it out and deliver it [because being in a state of bewilderment he said only 'write out' and did not manage to say also 'deliver']… Then they changed this and said, 'Also if a man went on a voyage or set out with a caravan.' R. Simeon Shezuri says, 'Also if a man was at the point of death'" (Git. 6:5). The halakhah was decided according to R. Simeon (tj, Git. 6:7, 48a).

Some scholars held that it was only in the matter of granting a divorce that a valid meḥamat mitah disposition was constituted in any one of the four above-mentioned circumstances (Piskei ha-Rosh, bb 9:18; Beit Yosef, Ḥm 250, no. 13), and that any other meḥamat mitah disposition was only valid in the case of a person seriously ill or one about to be executed, but not in the other two cases. The scholars made this distinction on the basis that in the latter two cases the testator harbors the intention of returning to his home (Rosh, loc. cit.), or that death is not imminent (Nov. Rashba, bb 146b; Maggid Mishneh, Zekhiyyah 8:24). Other scholars (Beit Yosef, loc. cit., quoting Alfasi, Maimonides, and Naḥmanides) took the view that there was no reason for distinguishing between a divorce and the disposition of property by will for this purpose.

A "healthy" person whose will is not made within the framework of one of the above-mentioned circumstances is not regarded as a person willing his property meḥamat mitah, notwithstanding his express declaration that he is acting as such out of fear that he might die suddenly (Resp. Rashba, vol. 1, no. 975; vol. 3, no. 118; Sh. Ar., Ḥm 250:14). Hai Gaon was of the opinion that if a "healthy" person willed his property in the apprehension of sudden death and in fact died shortly thereafter, his will was to be regarded as one meḥamat mitah (Judah b. Barzillai, Sefer ha-Shetarot, no. 54; Keneset ha-Gedolah, Ḥm 250, Beit Yosef, no. 131).

Undertaking and Acknowledgment or Admission (Odita, Hoda'ah)

One of the telling limitations imposed by Jewish law on the different forms of testamentary disposition is the fact that the disposition is valid only in respect of property in the possession of the testator at the time the will is made (Yad, Mekhirah 22:1, 5). To overcome this limitation there evolved the use of a will formulated as an undertaking, since the law, although it precluded any possibility of a person transferring property not yet in existence or possessed by him (in his reshut), presented no obstacle to undertaking an obligation in respect of such property (Resp. Rashba, vol. 3, no. 118). Such an undertaking could be affected in writing or before witnesses, and also by way of an acknowledgment (of indebtedness) called odita. According to one view an odita may only be affected by a shekhiv me-ra (Ittur, s.v., Hoda'ah; Or Zaru'a, no. 477, 4).

If the aforesaid undertaking is made in writing and the instrument is delivered before witnesses, the beneficiary may recover it even from nekhasim mesh'ubadim (i.e., encumbered and alienated property; see *Lien; but if not so delivered, the beneficiary may only recover from nekhasim benei ḥorin ("free property"; Maggid Mishneh, Mekhirah 11:15; Sh. Ar., Ḥm 40:1 and Siftei Kohen thereto, no. 3). In the case of an undertaking before witnesses, the benefactor declares, "Be witnesses unto me that I obligate myself," and the witnesses acquire from him (Yad and Sh. Ar., loc. cit.). The acknowledgment may also be made by the benefactor acknowledging indebtedness in writing or by declaring before witnesses: "Be witnesses unto me that I am indebted"; in this event the witnesses do not require a formal acquisition (kinyan) from the benefactor (Sma 40:1; Netivot ha-Mishpat 40, Mishpat ha-Urim n. 1 and Mishpat ha-Kohanim, n. 3).

A testamentary disposition by undertaking or acknowledgment is irrevocable, whether effected by a bari or a shekhiv me-ra, and in the latter case the disposition is not revoked on the benefactor's death (R. Isaac, in Tos. bb 149a; Sh. Ar., Ḥm 250:3). The usual time specified for fulfillment of the undertaking is an hour before the death of the benefactor so that the beneficiary should be unable to demand fulfillment during the benefactor's lifetime, since the due date of fulfillment is ascertainable only after the latter's death. However, it is essential that the due time of fulfillment be fixed at a date within the benefactor's lifetime, since an undertaking falling due for fulfillment after the promisor's death is void (Resp. Maharik, no. 89). Testamentary dispositions of this nature have been customary throughout the Diaspora in various forms and degrees of complexity. It is possible that the use of this form of will was adopted to avoid giving the appearance that the inheritance was being diverted from the legal heir – conduct of which the Mishnah says "The sages do not approve of him" (bb 8:5); it was therefore preferred through the means of such an undertaking to avoid a legal devolution of the estate. Widespread use of such an undertaking was made in the shetar ḥaẓi zakhar, a deed by means of which a father gave his daughter a share of the property equal to one-half of a son's portion (under the laws of succession). This deed, given to the daughter upon her marriage, may be regarded as a form of irrevocable will of the father (the deed being irrevocable in order to ensure the father's donation to his daughter and her husband). In this case, too, the time of fulfillment usually specified is one hour before the father's death. In order to overcome the difficulty of donating a specified portion of one's estate upon a daughter's marriage, at a time when the exact extent of the estate is still unknown, the following procedure was laid down: the father acknowledges that he owes his daughter a sum of money exceeding the estimated value of one-half of a son's share, adding a condition that the heir shall have the option either to pay this amount to the daughter of the deceased, or to give her a share of the estate equal to one-half of a son's portion (Naḥalat Shivah, no. 21; Rema, Ḥm 281:7 and eh 108:3).

Mitzvah to Carry out the Wishes of the Deceased

Although a will may be invalid for one reason or another, it may still be recognized in certain circumstances in terms of the rule that "It is a mitzvah to carry out the wishes of the deceased" (Ket. 70a, Git. 14b). Thus it is the duty of the legal heirs to carry out the wishes of the testator, and this is a duty which the courts will enforce. However, the above rule is not always to be applied as a strict legal duty, and when the duty is merely a moral one, the court will not compel compliance with the testator's directions (Shevut Ya'akov, vol. 1, no. 168). The rule applies to the bequest of both a bari and a shekhiv me-ra (Yad, Zekhiyyah 4:5; Sh. Ar., Ḥm 252:2) whether made orally or in writing (Tos., bb 149a). The rule's scope of operation is a matter of scholarly dispute; there are three different views:

(1) that it applies only in respect of property deposited with a trustee, at the time of the bequest, so that he should carry out the latter (Resp. Ritba, no. 54; Rema, Ḥm 242:2);

(2) that it applies even when the property is not deposited as mentioned above, provided that the legal heir of the deceased has been directed to carry out the bequest and does not object thereto (Resp. Ritba, loc. cit.; Sha'arei Uzzi'el, 1 (1944), no. 21);

(3) that it is applicable in every event, and even if the bequest has not been directed to any of the legal heirs, the latter are obliged to carry it out (Haggahot Mordekhai, bb no. 666). According to the aforementioned rule, ownership of the bequested property does not automatically pass to the beneficiary, but the duty is imposed on the legal heirs to transfer the said property to him (Rashi, Git. 14b; Mordekhai, bb, no. 630), from which derives an important distinction between a will taking effect by virtue of the above-mentioned rule and the wills of a bari and a shekhiv me-ra, namely: in the former case the beneficiary is not entitled to recover the bequested property from third-party purchasers (Haggahot Mordekhai, bb, no. 666), where he does have this right in the latter case (Resp. Rosh 86:5; Sh. Ar., Ḥm 111:9 and 257:6).

Capacity to Bequeath

A person's legal capacity to make a bequest is generally coextensive with his capacity to make a regular gift, but there are a number of special rules relating to the former:

(1) Although, according to some of the posekim, a minor generally requires his guardian's approval in order to make a gift (Yad, Mekhirah 29:7; Sh. Ar., Ḥm 235:2), such approval is unnecessary as regards a mattenat shekhiv me-ra. The explanation for this apparently lies in the fact that a mattenat shekhiv me-ra falls due after the benefactor's death, whereas guardianship terminates on the minor's death, and also because the primary task of a guardian is to safeguard the minor's interests, a task which falls away on the minor's death (Resp. Maharam Alshekh, 101).

(2) It is doubtful whether the tacit shekhiv me-ra bequest of a deaf-mute (ḥeresh), is valid, even though his tacit, regular gift is valid. The doubt arises from the fact that both the possibility of alienating by implication and a mattenat shekhiv me-ra derive from rabbinical enactment, whereas the rule is that "one does not add one takkanah to another" (bm 5b). On the other hand, it is possible that the rule, "the instruction of a shekhiv me-ra has the same force as a document written and delivered," applies also to the tacit acts of a deaf-mute – even with regard to his disposition of land and despite the fact that he cannot do so by way of a regular gift (Kesef ha-Kedoshim, 250:6).

(3) A proselyte has no capacity to make a shekhiv me-ra bequest: "A mattenat shekhiv me-ra has been given the same force by the rabbis as an inheritance; therefore where there can be inheritance there can also be gift and where there cannot be inheritance there also cannot be gift" (bb 149a). Hence, in view of the fact that a proselyte who leaves no offspring conceived after his proselytization has no heirs (Tos. bb 149a), he cannot make a mattenat shekhiv me-ra (Sh. Ar., Ḥm 256:1 and Rema thereto). According to some scholars, his capacity to bequeath is only limited as regards offspring conceived before his proselytization and who are not his legal heirs, but his shekhiv me-ra bequest made to any other person is valid (Sh. Ar., Ḥm 256, Sma thereto n. 3). Other scholars hold that the shekhiv me-ra bequest of a proselyte is of no effect, regardless of who the beneficiary may be (Hassagot Rabad on Rif, bb 149a, in the name of Hai Gaon; Hassagot Rabad on Yad, Zekhiyyah 9:7). According to another view, the rule that it is a mitzvah to carry out the wishes of the deceased does not apply to a proselyte (Tos., bb 149a; Tur, Ḥm 256:7–9; Rema, Ḥm 256:1).

Capacity to Benefit from a Bequest

A person's legal capacity to benefit from a bequest is generally coextensive with his capacity to receive a regular gift, but here, too, there exist a number of special rules:

(1) According to some of the posekim a proselyte cannot receive a mattenat shekhiv me-ra (Rabad, quoted in Shitah Mekubbeẓet, bb 149a and Tosefot Rid, ad loc., end of no. 14).

(2) Even the posekim who hold that a person cannot give a regular gift to his offspring as long as they are *embryos, agree that it is acceptable for him to make them a shekhiv me-ra bequest (Beit Yosef and Derishah, Ḥm 210, no. 3; Siftei Kohen, Ḥm 210, n. 1).

A person who lacks capacity to benefit from a bequest, may benefit from it if it is executed in the form of assignment to a third party on his behalf. This possibility also applies in the case of a mattenat shekhiv me-ra, and it is possible to benefit an embryo in this manner, even according to the posekim who reject the possibility of a mattenat shekhiv me-ra in favor of an embryo (Tur, Ḥm 210:1).

Subject Matter of the Bequest

In general the restrictions placed on the possible subject matter of a regular gift are applicable also as regards the subject matter of a bequest. According to certain posekim, a person cannot make a mattenat shekhiv me-ra and retain for himself the usufruct of the property in question, even though this may be done in the case of a regular gift (Rabad, quoted in Beit Yosef, Ḥm 209:10; opinion quoted by Rema, Ḥm 209:7). The reason for this is that a mattenat shekhiv me-ra is acquired after the benefactor's death so that his retention of the usufruct is solely for the benefit of his legal heirs and not for himself. A bequest may be made of property in kind and also in the form of a fixed payment (Ta'an. 21a; Ket. 69b), or by establishing a fund, with the income from it designated for a particular purpose (Pitḥei Teshuvah, Ḥm 246, n. 2). It is possible for the testator to nominate an executor (apotropos) of his estate (Tur, Ḥm 250:1 and 33). There is also an opinion that a shekhiv me-ra may entrust the executor with the actual decision as to division of the estate (Mordekhai, bb, no. 600).

At times wills have included charitable bequests. When such a bequest is made in a manner whereby the principal is established as a perpetual fund, while the income from it is dedicated to the charitable purpose, the estate – or the portion concerned – is known as a keren kayyemet (Resp. Rashba, vol. 3, no. 295; Keneset ha-Gedolah, yd 253; see also *Consecration and Endowment).

Form and Wording of Wills

It is desirable that it be indicated in the will whether the testator is a bari or a shekhiv me-ra, although omission to do so does not affect the will's validity (Yad, Zekhiyyah 9:22; Tur, Ḥm 251:3). In the case of a dispute between the legal heirs and the beneficiaries under the will, the burden of proof as to the testator's state of health devolves on the latter, since the legal heirs are deemed entitled (muḥzakim) to the estate's assets and "the burden of proof rests on the claimant" (Yad and Tur, loc. cit.; Sh. Ar., Ḥm 251:2). The following are the customary versions, since talmudic times, to describe the testator's state of health: for a mattenat bari, "while he was walking on his feet in the market"; for a mattenat shekhiv me-ra, "while he was ill and confined to his bed"; and for a shekhiv me-ra will reduced to writing only after the testator's death, "and from his illness he died" (bb 153a, 154a), this version being essential since the disposition will be void if the testator should not die from the illness (bbibid.; Sh. Ar., loc. cit.).

The testator must employ the phraseology which is effective for transfer of title in regular gifts. Thus it is necessary for the testator to use a verb denoting gift (natan, "gave," etc.; bb 148b; Sh. Ar., Ḥm 253:2). A shekhiv me-ra testator who bequeathes in favor of his legal heir may employ a verb denoting inheritance (Ḥm 281:3). The phraseology used by the testator must clearly show that the testator is alienating the asset concerned and not that he is promising to transfer title to it (Rashi, Git. 40b). Use of the past or present tense confers title but not use of the future tense (Yad, Zekhiyyah 4:11; Sh. Ar., Ḥm 245:1). On the other hand, a shekhiv me-ra will couched in the future tense, is valid since in this case the testator speaks of a gift to take effect in the future – after his death. However, even a shekhiv me-ra will is invalid if phrased as a mere promise (Beit Yosef, eh 51–end of s.v. שנים; Maggid Mishneh, Yad, Mekhirah 2:8; Baḥ, Ḥm 253:2). Language phrased in the form of a request to the testator's legal heirs to give specific assets to the beneficiaries under the will is valid and effective (Piskei Maharam, no. 99; Rema, Ḥm 250:21).

As in all cases of gift, the will of both a healthy person and that of a shekhiv me-ra must be executed in public, and the testator must direct the witnesses to sign the will in like manner: "… Sit in the markets and public places and write for him openly and publicly a deed of gift" (Yad, Zekhiyyah 5:1, 4; bb 40b; Tur, Ḥm 242:7). A meḥamat mitah testator is not required to direct that the disposition be made public (Yad, Zekhiyyah 9:2), but if he should expressly direct the witnesses to keep his will secret, it will be invalid (Perisha, Ḥm 242:4).

Interpretation of Wills

Wills are generally subject to the same principles of interpretation as are all other documents (see *Interpretation). The process of umedana ("estimation") is of particular application to the interpretation of wills – that is the process of endeavoring to fathom the mind of the testator in order to understand his true intention – and the will itself is virtually the exclusive means to do this. The legal heirs of the deceased are deemed to be in possession of his property. Hence, a person claiming under the will is subject to the rule that "the holder of a deed is always at a disadvantage," for the reason that "the burden of proof rests with the claimant" (Bik. 2:10; Ket. 83b), and the beneficiary under the will accordingly has the burden of proving that the testator's intention was such that the will should be interpreted in his favor. The aforementioned rule only applies where doubt has arisen with regard to the interpretation of the will, and it does not operate in order to void the will entirely (Resp. Ribash, no. 145; Sh. Ar., Ḥm 42:9).

The principle of estimation may serve to entirely invalidate a will. Thus in a case where a shekhiv me-ra, in the belief that his son is dead, bequeaths all his property to another, the disposition will be invalid if it should subsequently transpire that the son is alive – and in this event the latter will inherit from his father (bb 146b). Similarly, in certain circumstances a beneficiary under a will may become the mere custodian of the estate assets should it be so determined as an outcome of estimation that it was this that the testator intended (bb 131b; Sh. Ar., eh 107 and Ḥm 246:4–12).

Various rules were determined with regard to the interpretation of certain expressions in a will. Thus with reference to a shekhiv me-ra will, it was laid down that the term banim means "sons" and excludes daughters (tj, Ket. 13:1, 35d) and that the intention of the testator who bequeaths all his property to his banim, when he has one son only and daughters, is to bequeath all to his son (bb 143b and see the biblical texts there cited; Yad, Zekhiyyah 11:1). Disputed in the Talmud is the intention of the testator who bequeaths to his banim when he has a single son and a grandson, and it was decided that in such a case it is not intended that the grandson be included (ibid.).

If a will contains contradictory directions which cannot possibly be reconciled with each other, the direction recorded last in the will prevails, on the assumption that the testator has repudiated the earlier direction (bb 10:2; Yad, Malveh 27:14; Sh. Ar., Ḥm 42:5). However, when the contradiction emerges from the directions contained in one and the same passage of the will, the later reference is of no special import and the rule that "the holder of a deed is always at a disadvantage" applies (ibid.).

Authority to interpret documents is in general entrusted to the courts. With regard to a shekhiv me-ra will this authority is sometimes entrusted to the persons present at the time of its execution (bb 113b; Sh. Ar., Ḥm 253:1). Thus if a shekhiv me-ra bequeathed his property in the presence of three persons, the latter may adjudge in the matter of the will and with reference to any doubt arising in connection with its interpretation (Rema, Ḥm 253:1). However, if these persons were requested to be present as witnesses to the will, they will be disqualified from acting as judges in matters concerning the will (Beit Yosef, Ḥm 7:6; Sh. Ar., Ḥm 7:5). Another opinion that they will be disqualified even if they were not requested to serve as witnesses but intended to act as such (Rashbam, bb 113b) was rejected by a majority of the posekim (Tos. bb 114a; Sh. Ar., loc. cit.). Three persons present at the time of the testamentary disposition may only act as judges in connection with it when the will is made in the daytime, since the halakhah is that the adjudication shall not take place at night (see *Bet Din; Sh. Ar., Ḥm 5:2 and 253:1). If sums of money are bequeathed by a shekhiv me-ra to several persons, and it transpires that the latter's estate is lacking in funds, the position will depend on the way in which the bequest is worded. If the wording is, "give two hundred zuz to A, three hundred zuz to B, and four hundred zuz to C," each of the persons mentioned receives only his proportionate share of the available amount; if, however, the wording is, "give two hundred zuz to A, thereafter three hundred zuz to B and thereafter four hundred zuz to C," the parties will take precedence in turn in accordance with the order in which their names are mentioned (Yad, Zekhiyyah, 10:13, 14).

Accrual of Rights under a Will

The beneficiary under a mattenat bari becomes entitled to the disposition in accordance with the terms of it, that is to the body of the property immediately and to its fruits upon the donor's death. In this case the beneficiary's right to the body of the donated property is a regular proprietary right, which he may, therefore, sell even during the donor's lifetime, and if the beneficiary should predecease the donor, the former's heirs become entitled to the donation (Sh. Ar., Ḥm 257:4). The beneficiary under a shekhiv me-ra will becomes entitled to the bequeathed property upon the testator's death since a shekhiv me-ra will is subject to the same law as is succession according to law (see above). Therefore, if the beneficiary should predecease the testator, the former's heirs do not become entitled to anything at all (Sh. Ar., Ḥm 125:9 and Siftei Kohen, thereto, 36).

Renunciation of Rights under a Will

In general, a person's refusal to accept property given to him as a gift will be effective if the refusal is made before the property comes into his possession, and in this event he does not become entitled to it (Ker. 24b). In the case of a gift or bequest made in the beneficiary's presence, the latter must at this very stage express his refusal of it (Sh. Ar., Ḥm 245:10); if he should wish to renounce a gift or bequest not made in his presence, he must do so immediately on becoming aware of it (Rif, Halakhot, bb 138a; Piskei ha-Rosh, ibid.; Yad, Zekhiyyah 9:13). A renunciation made by a beneficiary who remains silent for a period after having become aware that the gift or bequest has been made is ineffective (Yad, Zekhiyyah 9:14; Sh. Ar., Ḥm 245:10). The renunciation must be made in an unequivocal manner, and the beneficiary must clearly state that he has no intention at all of becoming entitled to the gift or bequest and that it is a nullity ab initio (Yad, Zekhiyyah 9:13; Sh. Ar., Ḥm 245:7 and Sma thereto, n. 18).

Fideicommissary Bequests

The testator may direct that particular assets shall be given to the beneficiary for a limited period and that after this period these assets shall pass to another. A will is generally made in this form when the testator wishes to ensure that his property shall not, after the beneficiary's death, pass to the latter's heirs but shall go to some other person (Yad, Zekhiyyah 3:9; Sh. Ar., 241:6; Rema, Ḥm 248:3). In principle there is no restriction on the possible order of successive beneficiaries which the testator may determine, but in practice this right is qualified by the requirement that all the beneficiaries must be alive at the time the gift or bequest is made (Resp. Rosh, no. 84:1 and 2). Each beneficiary under such a will in turn enjoys the usufruct of the bequeathed property and has the right to deal with the latter as with his own property – even to sell it.

A moral prohibition was imposed on the sale of such property by any one of the fideicommissaries – save for the last beneficiary mentioned in the will – since this was held to amount to a frustration of the testator's original intention; a sale effected by one of the fideicommissaries contrary to the above prohibition is nevertheless valid (bb 137a; Yad, Zekhiyyah 12:8, 9). A disposition of the bequeathed property by way of a shekhiv me-ra will on the part of a fideicommissary is ineffective, since the property only passes into the new beneficiary's possession after the testator's death and at this time the property is no longer the latter's but that of the fideicommissary next in line in terms of the original will (bb 137a; Yad, Zekhiyyah 12:10).

In the case where property is bequeathed to an unmarried woman, "to you and thereafter to A," and the woman subsequently marries, the property will not pass in turn to A but the woman's husband will become entitled to it (Ket. 95b); however, if a bequest of this nature is made to a married woman, the beneficiary next in line will in turn succeed to the property, since this will be assessed to have been the testator's true intention (Ket. loc. cit.; Yad, Zekhiyyah 12:12; Sh. Ar., eh 91:2 and Ḥm 248:8).

Where property is bequeathed by a shekhiv me-ra will to a legal heir of the testator "to you and thereafter to A," the property will not upon the beneficiary's death pass to A but to the beneficiary's legal heirs (Yad, Zekhiyyah 12:7; Sh. Ar., Ḥm 248:1; bb 129b and Rashbam, ad loc.). The explanation for this is as follows: since in a shekhiv me-ra will the property only passes to the beneficiary after the testator's death, and since the beneficiary is a legal heir of the testator, the former becomes entitled to the property by virtue of the law of the Torah and the testator may not stipulate that his property shall after the beneficiary's death pass to A and not to the beneficiary's legal heirs, for this is a stipulation contrary to the law of the Torah and therefore void; this rule is referred to in the Talmud as yerushah ein lah hefsek ("an inheritance cannot be terminated"; bb 129b, 133a).

Takkanot Concerning the Form and Execution of Wills

In many communities different takkanot were enacted with regard to various documents which, in particular, obliged those executing the documents to do so before a scribe or rabbi (Sh. Ar., Ḥm 61:1), both as a protection against forgeries and in order to make the documents publicly known (Baḥ, Ḥm 61:1). At times it was laid down that a document executed contrary to a particular takkanah was of no effect and a fine was even imposed on the person who executed it (S. Buber, Anshei Shem (1895), 225f.). In some cases it was necessary for certain deeds to be publicly announced in the synagogue (Resp. Ribash, no. 88; Resp. Rashba, vol. 3, no. 431). The manner of execution of wills was specially dealt with in a number of takkanot. Thus two years after the expulsion of the Jews from Spain, the takkanot of Fez were enacted which included, among others, this takkanah: "Whoever shall wish to make a gift or will, whether male or female, shall do so before the ḥakham or dayyan of the town, otherwise the gift or will shall be of no worth" (Kerem Ḥamar, vol. 2, no. 11). This takkanah was later extended (ibid., no. 19) and a further takkanah prescribed that "any shekhiv me-ra will or gift which shall not be made before the ḥakham or dayyan of the town shall be null and void; that is, everything that a shekhiv me-ra shall do is void if not done before a dayyan" (ibid., 36a/b, takkanot pertaining to Ḥm, no. 4). These takkanot were apparently enacted for two reasons: to ensure that the testator was of sound mind when making the will, and so that the scholar could stress before the testator the fact that the latter was transferring the inheritance from his legal heirs to someone else, a consequence looked upon with disfavor by the scholars (Mishpatim Yesharim, no. 2:161, and see above). Similar takkanot were enacted also in Jerusalem (Resp. Mabit, no. 2, pt. 2, no. 1).

Jerusalem Takkanot

It was the custom that the estate of a person who died in Jerusalem without leaving any heirs in Ereẓ Israel passed to the public, a custom apparently aimed at preventing the authorities from taking the estate. The public would administer the estate, and if the heirs of the deceased later came to claim the estate, it would be sought to influence them to leave part of it to the community chest. At a later stage a takkanah was enacted to the effect that the estate of a deceased person without any heirs in Ereẓ Israel actually passed to the public (see Rivlin, in bibl.). However, even after the enactment of this takkanah a person could still keep his estate from passing to the public by making a will. A deterioration in the position of Jerusalem Jewry led to the enactment of a number of further takkanot in this connection. Thus in 1730 there was a reinstatement of an ancient takkanah which laid down that a will had to be executed before communal representatives and that it was necessary that there be present a representative of the communal leadership of Constantinople, communal appointees, as well as a *parnas and scribe of the community and, failing this, the will would have no validity. At the same time it was expressly laid down that a person could bequeath as he wished before the above-mentioned persons (Sefer ha-Takkanot ve-Haskamot … Yerushalayim … (1883²) 24b, 25b, 26a). In 1737 a far-reaching takkanah was enacted which forbade a person without heirs in Ereẓ Israel from making a will (ibid., 18a/b). When this takkanah was circumvented by persons who made a mattenat bari abroad before coming to settle in Ereẓ Israel, there was enacted a takkanah in 1776 which rendered invalid various kinds of wills, including a mattenat bari "from today and after my death," whether executed in or outside of Ereẓ Israel (ibid., 29a/b). In 1810 Ashkenazi Jews (Perushim) began to settle in Ereẓ Israel, and they objected to the above takkanot. For some years a dispute was waged in regard to these takkanot, and in the end they were not followed by the Ashkenazi Jews (see Rivlin, in bibl., p. 61).

Takkanot Concerning Disposition of the Property of Spouses

The Toledo takkanot enacted in favor of the wife's family were aimed at preventing the entire assets contributed by the wife to her husband from passing to the latter on her death. These takkanot provided that the wife's relatives – who would normally inherit from her in the event that she survived her husband – should receive one-half of her estate. It was decided by Asher b. Jehiel that a wife could not dispose of her property by will so as to leave it all to her husband or some other person and thereby frustrate the object of the above takkanot (Resp. nos. 55:1 and 40:2). In consequence of the decision, takkanot were enacted in the communities of the Spanish exiles which expressly incorporated the import of the decision into the Toledo takkanot. The exiles of 1391 who settled in North Africa enacted – under the guidance of R. Simeon b. Ẓemaḥ *Duran – a series of takkanot, the third of which, among others, rendered it forbidden for a woman to make any form of will in which she purported to transfer one-half of her estate "to any person in the world save to any offspring she has by her husband who would be her nearest heir; and if she has done so, it shall henceforth be null and void" (Tashbeẓ, 2:292).

From the statements of the posekim of the Moroccan communities, it appears that despite the existence of various takkanot which followed those of Toledo, it still remained possible for a woman to make gifts to her husband or other persons (Mishpat u-Ẓedakah le-Ya'akov, pt. 2, no. 83; Mishpatim Yesharim, no. 2:211). On the other hand it was decided there that a shekhiv me-ra bequest made by a woman in which she gave a large part of her property to her husband was invalid (Ner Ma'aravi, no. 1:16). Another takkanah enacted in Fez imposed restrictions on the husband's freedom to make a testamentary disposition of his property by prescribing that if the wife objected to the shekhiv me-ra will of her husband, her share – or that of her heirs – in the estate would remain unaffected by the will. Another takkanah laid down that before distribution of the estate in accordance with the existing takkanot, there were to be recovered from it mattenat bari but not shekhiv me-ra bequests to which the wife of the deceased objected (Kerem Ḥamar, vol. 2, 34b, no. 6; the scholars were divided on the interpretation of this takkanah – see Mishpatim Yesharim, no. 2:268).

In consequence of the migrations of the Spanish exiles similar takkanot to those of Toledo were enacted in many communities of the Mediterranean countries. In some places a woman was expressly precluded from bequeathing part of her property to her husband; this was prescribed, for instance, in the takkanot of Arta (Torat Ḥayyim, eh 24), apparently enacted in 1597 (see Resp. Ranaḥ, no. 25).

In the State of Israel

In the Succession Law of 1965 the Knesset partly adopted and partly rejected different principles pertaining to testamentary dispositions in Jewish law. The mattenat bari and shekhiv mera forms of will were adopted both in formulation and content (sec. 23; M. Elon, in: ilr, 4 (1969), 133f.). The Law – in reception of Jewish law principles and contrary to English law – empowers the court to give effect to a formally defective will when there is no doubt as to its genuineness (sec. 25).

[Shmuel Shilo]

A Will Formulated as a Request

Rabbi Israel Isserlein (Resp. Terumat Ha-Deshen, Pesakim u-Ketavim, (Ashkenaz, 15^th century), 99) was asked about a will in which the testator turned to his son, requesting him to waive a particular debt that someone owed him; the question was whether this request was in fact an integral part of the will or merely a request or recommendation. His answer was that he was inclined to view this as a will in every respect, and that the use of the form of request, rather than instruction, was merely in order for the matter to be dealt with amicably. The Rema (Sh. Ar., Ḥm, 250:21) ruled, on the basis of this responsum, that where a will is drafted in the form of a request, it is to be considered as a statement of a shekhiv mera, of one who is critically ill, and therefore to have the binding force of a will. Other halakhic decisors expressed doubts regarding this matter, in view of the fact that further on in this responsum Rabbi Isserlein himself questioned whether this was in fact the law (Ḥiddushei Rabbi Akiva Eiger, ad loc.; Beit Yosef, Ḥm 253).

Rabbi Isserlein's responsum and Rema's ruling were considered in decisions of the rabbinical courts in the State of Israel when adjudicating a case in which the language of the will was framed as a request. The Regional Rabbinical Court in Petaḥ Tikvah (File 1862/28) ruled that, even according to the opinion of the Rema, an additional reason is needed in order for the request to be considered a will, noting that in his responsum Rabbi Isserlein had explained that the provision was framed as a request in order for the matter to be dealt with amicably. Thus, only where there is an additional rationale to explain the background for using the form of request, such as that brought by Rabbi Isserlein, which explained the background of the request, may a request be viewed as a provision of a will. In the appeal, the Israeli Rabbinical Court of Appeals (5731/4, 8 pdr 240) rejected the reasoning of the Regional Rabbinical Court and stated that Rabbi Isserlein's opinion implies that any request constitutes a will unless there is cause to believe otherwise, in which case an additional rationale is needed, and the decision of the Rema is applicable to any ordinary case of a will written as a request (ibid., pp. 245–47).

A similar question came before the Israeli Supreme Court when the deceased left a letter recommending to the person whom he had designated as his heir not to accept the inheritance (ca 202/85 Kleine-Beck v. Goldberg, 41(2) pd 753; per Justice Menachem Elon). The family of the deceased argued that this constituted a revocation of the will, whereas the person designated as heir argued that this was only a recommendation. The District Court ruled according to the responsum of Rabbi Isserlein – namely, that a request constitutes a will and thus the earlier will must be viewed as having been revoked. The Supreme Court ruled that a distinction must be made between a request, that must be viewed as a will under Jewish Law, and the case under consideration, in which the document at issue was a letter containing a recommendation, that could not even be considered as a request; hence its language should not be viewed as a will, and the letter did not revoke the earlier will (ibid, pp. 768–70).

Enforcing a Defective Will

Wills that are drafted by notaries, in accordance with the laws of the State, often contain elements that would be considered defects according to Jewish Law and that would, prima facie, prevent their execution. Nevertheless, the accepted practice is to uphold such wills and to regard them as valid, pursuant to the principle of custom (see *Custom). The basis for this position is the responsum of the Radbaz (1:67) ruling that the custom is to uphold instruments of the non-Jewish legal authorities. Even though the rule is that custom generally cannot override or invalidate rulings based on Torah, here there is no actual invalidation of Torah law governing inheritance, but simply a ruling that the gift was a valid gift on the basis of custom. A similar ruling was given by Rabbi David Ḥai Hacohen (Resp. Radakh 26:3; Italy-Greece, 16^th century).

According to the opinion of some of halakhic authorities such wills should be upheld pursuant to the principle of dina de-malkhuta dina (see *Dina de-Malkhuta Dina). Some are of the opinion that this is only possible when an act of acquisition (kinyan) was performed at the time the will was written (Arukh ha-Shulḥan, Ḥm 68:6), while according to others no such act is necessary (Resp. Iggerot Moshe, Even Ha-Ezer, nos. 104–105).

There are additional cases in which a will is inconsistent with the requirements of Jewish Law and the rabbinical courts nevertheless make an effort to uphold these wills relying, inter alia, on the following solutions:

1. In cases in which it may be inferred from the language of the document that the testator is only transferring ownership after his death (i.e., where the testator writes that he bequeaths his property "after my death"), this wording may be interpreted as "bequeathing in the contemplation of my death" (see supra), inasmuch as there is a tendency in the rulings of halakhic decisors of recent generations to broaden the possibilities of viewing the will of a healthy person as "a will in the contemplation of death."

2. The use of the rule "it is a mitzvah to carry out the wishes of the deceased," as cited above, while adopting the approach that broadens its application beyond the cases in which the property has been transferred to a trustee. This is especially the case where the will bequeaths the property for a charitable purpose.

3. Where funds deposited in a bank account are bequeathed. In such cases inasmuch as the funds have been deposited with the bank in accordance with the bank's procedures, which require the bank to transfer the money to the heirs pursuant to the will, which is probated according to civil law, it is authorized to and required to act according to its procedures.

In the State of Israel – Later Developments

As stated above, some of the sections of the Succession Law, 5725 – 1965, adopted various provisions of Jewish Law. An example of this is Section 42(b) of the Succession Law, dealing with the case of consecutive heirs, which provides, inter alia, that the first heir "may deal with what he received as his own and the second shall only take what the first has left." This provision is consistent with the provisions of Jewish Law, as discussed at length above. In a case decided by the Supreme Court (ca 749/82 Moston v. Wiederman, 43(1) pd 278), the testator provided in his will that his property would be bequeathed to his wife and that upon her death it would pass to his legal heirs. After studying and discussing the sources of Jewish Law on this subject, the Court ruled that the testator's wife was entitled to the property and was entitled to carry out any legal transaction regarding them, including their sale, but that she could not bequeath them in her will to other beneficiaries. This was because immediately upon her death the ownership of the property returns to the legal heirs of the first testator, in accordance with the provision of Jewish Law that the first beneficiary may transfer the estate in any manner except by will, not even by way of a shekhiv me-ra's will to other beneficiaries (ibid, pp. 289–93; per Justice Menachem Elon); for a detailed discussion of the aspects of this subject in Jewish law see *Law and Morality).

The origin of Section 23 of the Succession Law in the Jewish Law regarding shekhiv me-ra served as the basis for the interpretation given to this section by the Supreme Court in the Koenig decision (fh 40/80 Koenig v. Cohen, 36(3) pd 701). That case involved a will that a woman left on a piece of paper, undated and unsigned, a moment before she took her life. The justices' opinions were divided regarding the legal validity of the will. Justice Menachem Elon ruled that the document should be regarded as a will in contemplation of death, given that a shekhiv me-ra's will and a will in contemplation of death are valid even without a kinyan, and even if there were not two witnesses at the time it was drawn up, there is a presumption, by virtue of the special circumstances involved in its drafting, that it reflected her considered wishes and decision (Rambam, Yad, Zekhiyah u-Matanah, 8:2, 4, 24, 26; Sema, Ḥm 253:1). In view of this, the will in the case under consideration, that had no date and to which there were no witnesses, must be validated, notwithstanding its omissions and defects (ibid, pp. 733–38).

In another decision (ca 2555/98 Abergil v. Ben Yair, 53(5) pd 673), the Supreme Court ruled that the drafting of a will pursuant to the rules of Jewish Law, in the manner of granting a gift while alive, is to be treated by the civil courts as a will and not as a gift, and the provisions of the Succession Law, 5725 – 1965, will apply rather than those of the Gift Law, 5728 – 1968. The Court (Justice Y. Englard) cited the Jewish Law sources discussed above, dealing with the will of a healthy person by way of a gift while living, ruling that Jewish Law indeed considers it a gift, and not a will. However, this is because this is the only recognized way under Jewish Law to distribute the estate to parties other than the legal heirs; hence, this act must be judged according to its substance, and should be regarded as a will rather than as a gift (p. 686 of the decision). In view of this, the Court ruled that even a will drafted in accordance with Jewish Law must fulfill the requirements of Succession Law 5725 – 1965 regarding wills. It should be noted that, regarding this approach of the civil courts, there were those who commented that the decision represents a degree of restriction of the freedom to enter into contractual agreements, inasmuch as it does not permit a person to give his property as a gift in accordance with the model of a "living gift" under Jewish Law.

[Menachem Elon (2^nd ed.)]

bibliography:

L. Bodenheimer, Das Testament unter Benennung einer… Erbschaft … (1847); M. Bloch, Das mosaisch-talmudische Erbrecht (1890); M.W. Rapaport, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 14 (1900), 1–148; Gulak, Yesodei, 3 (1922), 113–45; idem, Oẓar, 110–31; idem, in: Tarbiz, 4 (1933), 121–6; idem, Das Urkundenwesen im Talmud (1935), 125–36; Herzog, Instit, 1 (1936), 152–4; 2 (1939), 29f.; S. Assaf, in: Emet le-Ya'akov… Freimann (1937), 8–13; E. Rivlin, in: Azkarah… ha-Rav… Kook, 3 (1937), 559–619; H. Cohn, in: Yavneh, 3 (1949), 80–105; A. Freimann, ibid., 106–10; et, 1 (1951³), 86–88, 251–3, 255; 7 (1956), 114–34; A. Karlin, Divrei Mishpat, 1 (1954), 46–81; R. Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (1960); A. Kimmelmann, Ẓavva'at Bari ve-Ẓavva'at Shekhiv me-Ra be-Dinei Yisrael … (1963); idem, in: Sinai, 55 (1964), 145–55; E.E. Urbach, in: Divrei ha-Congress ha-Olami ha-Revi'i le-Madda'ei ha-Yahadut, 1 (1967), 133–41; Elon, Mafte'aḥ, 139f., 168–73, 242–5; idem, in: ilr, 4 (1969), 126–40. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:89f., 133f.,361, 364, 369, 417, 476, 651, 653, 670f., 680, 683, 763; 2:992, 1284, 1290; 3:1332, 1395, 1404f., 1412f., 1575f., 1592; idem, Jewish Law (1994), 1:99f., 149f., 436f., 440, 446; 2:509, 580, 805, 808, 828f., 839, 843, 940, 962; 3:1200, 1533, 1540; 4:1591, 1663, 1673f., 1681f., 1875f., 1895; idem, Ma'amad ha-Ishah (2005), 255–96; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 2:260, 266–75; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot veha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 2:187–91; I. Gruenfeld, The Jewish Law of Inheritance (1987); M.A. Rabilo, "Al Matanot ve-Yom ha-Mavet," in: Sefer Ha-Zikharon le-Gad Tedeski (1996), 581–606; Y. Rivlin, Ha-Yerushah ve-ha-Ẓava'ah be-Mishpat ha-Ivri (1999); H.S. Shaanan, "Ẓava'ah ke-Halakhah," in: Teḥumin, 13 (1992–1993), 126–317.

Wills

Sections Within This Essay:

Background

A will, sometimes known as a "last will and testament," is a legal document that provides written instructions for the distribution of a decedent's (dead person's) property. Generally, people should consider making a will if they care how their property will be distributed when they die, they want to name the person who will handle financial and legal matters they may leave behind, or they want to name a guardian for their minor children.

What is in a Typical Will?

A will most likely will include the following provisions:

• Your name (the testator )
• The name of your spouse and the date of your marriage, if any
• The name of your children (and how you wish any foster and stepchildren to be treated), if any
• A statement revoking any wills you may have previously made
• Your nomination of a personal representative to administer the estate and usually at least one alternate.
• A list of powers that you want your personal representative to have (these are often enumerated in your state's statutes
• A list of any special gifts
• Instructions for distributing the remainder of your estate after your debts, taxes, and ex-penses incurred in administering your estate have been paid
• A waiver of any surety bond requirements

Your will may not cover everything that you consider "your property." The following types of property are examples of assets that may pass directly to a beneficiary you have named in a separate document:

• pension plan assets
• 401(k) plan assets
• life insurance
• annuities
• property held through a "trust"

These assets would usually pass to beneficiaries you have previously named in documents under the supervision of the manager of the pension plan, the company sponsoring the 401(k), life insurance companies, annuities, and in a trust instrument. However, if you name "my estate" the beneficiary of any of these kinds of assets, then your will would control who receives the property and benefits. Be aware that by doing this your eventual beneficiaries may experience some significant delays and/or some important tax disadvantages.

Your will should be prepared and properly executed (signed by you and a certain number of competent witnesses) while you still have legal capacity. Thus, if you want a will, you should have one prepared and sign it according to the applicable state law while you have full control over your mental functions. If you wait until you suffer an accident or an illness, it could be too late.

The Personal Representative

When you die, your personal representative (also known as an administrator or executor) will gather and inventory all of your property at the time of your death. Most states require the personal representative to post a surety bond covering his/her actions, although you can explicitly waive this requirement in your will. The personal representative will also determine your outstanding debts, pay your legitimate debts, and distribute the remaining property according to the instructions in your will. Your personal representative will be appointed in a probate proceeding. The personal representative must usher your property through the probate process, subject to your state's probate rules and procedures. In many states, the court maintains tight control over the activities of the personal representative. For example, the personal representative must obtain the court's permission to sell, distribute, or otherwise take action with respect to property in your estate.

It is important to choose someone who you think will be competent and trustworthy to serve as your personal representative. The personal representative will have access to all of your property and the authority to conduct certain business on your behalf. To the extent that you can, it is a good idea to choose a person with some business experience, intelligence, and high integrity. Your will should name the person you wish to nominate as your personal representative. You will probably also name one or more alternates to serve in the event that your first choice for personal representative is unwilling or unable to serve. Because you cannot speak in your own behalf, your will acts as your voice to inform the probate court about who you think will be best suited to this job.

Changing a Will

The most common reasons to change your will after it has been executed include the following:

• You get married or divorced
• Your family increases through the birth or adoption of child
• There is a death of a family member or of a beneficiary
• There are changes in the Federal Estate Tax laws or State Tax laws that may effect your estate
• There is a substantial change in the value of your estate
• You change the nature of your property holdings, which impacts your distribution plans.
• A potential guardian, executor, or Trustee moves away, dies, or refuses to serve in that capacity.
• Your children reach the age of majority, or are old enough to manage financial matters on their own
• You move to a different state
• You need or want to eliminate gifts to certain people

To change your will, there are two basic choices, and professional assistance is in order for both. First, you can prepare and properly execute an entire new will that revokes the previous will. Second, you can prepare and properly execute a codicil to the will. A codicil is a separate document that adds to and/or replaces one or more provisions in an existing will. What makes the most sense for you will depend on the facts and circumstances. For example, if there is a new tax provision that favors provisions in existing wills, but not new wills, or there may be a question subsequently raised about your mental competence. In these cases, a codicil would generally be the best choice.

Codicils were used frequently in the past, but lawyers now use computer technologies that can quickly integrate any changes you want to make—even minor ones—into an entirely new will that is up to date. Because of the ease of making the changes, the fees charged to make these modifications are usually modest. Your lawyer may even suggest revisions to your will that take account of new laws, tax rules, and changes in your circumstances that you may have overlooked in your previous will. Regardless of the ease of making these changes, never try to make changes in your will on your own. If you write in the margins, add material, cross out words, lines, or sections of the original will you could possibly create some confusion or ambiguity and thereby invite unpleasant and protracted will contests.

Competency

Someone trying to have your will accepted for probate generally must establish that you were of sound mind and memory at the time you executed your will. Even if one becomes old, frail, and forgetful, it is difficult to get a court to regard a will as invalid. Generally, those who witnessed the will being signed will almost always say that the deceased was of sound mind, was aware of his surroundings, the day or date, who his family members were, and knew that he was signing a will. The burden then shifts to the person challenging the will to prove it should not be accepted for probate.

Courts maintain a strong presumption that a will is valid. Thus, it can be costly and difficult to prove that someone was mentally incompetent, made a mistake, or was subject to fraud, coercion, duress, or undue influence when making and/or executing the will. Even if the testator suffers weakened mentality after the will was made has no bearing. The validity of the will is only called into question should an incompetent testator want to change the will at a later date.

Contesting or Challenging a Will

Will contests challenge the admissibility of wills in probate courts. It is a kind of litigation that questions whether a will should be properly admitted by the court as evidence of a decedent's wishes regarding the distribution of his estate, appointment of guardians for minor children, or other issues dealing with the decedent's estate. One may not contest the validity of a will merely because that person does not like the will's provisions. A will's validity is not determined by one's sense of "fairness" of the will's contents. Nor is a will's validity determined by how reasonable the will's provisions appear nor on the timing of disbursements.

Despite the feelings of a decedent's family or friends, a will is most likely to be challenged by someone claiming one of the following:

• the will was not properly written, signed or witnessed, or did not meet the state's formal requirements
• the decedent lacked mental capacity at the time the will was executed
• the decedent was a victim of fraud, force, or undue influence
• the will is a forgery

If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case.

If someone files an objection to your will or produces another will, a "will contest" has begun. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. Not just anyone can contest a will. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent. For example, if a decedent revises his will and the later will is less favorable to someone than an earlier will, that person has standing. Someone may initiate a will contest to have a different person, bank, or trust company serve as the personal representative for an estate or serve as a trustee of trusts created by the will. Some of the most common challenges to wills come from potential heirs or beneficiaries who received less than they had anticipated.

Disinheriting

Can you disinherit your child? The answer is generally yes. To do so, you must explicitly state that you intend to disinherit that child in your will. If your child is a minor, the state laws typically provide some sort of allowance out of the assets of your estate to support your child until he or she reaches the age of majority.

Can you disinherit your spouse? The answer is generally no. But if you and your spouse waived the right to be included in each other's estate in a prenuptial or postnuptial agreement, you may then entirely omit your spouse from taking anything under your will. In the absence of such an agreement, you can limit the amount your spouse will receive to a statutorily defined minimum. All states have laws that shield a surviving spouse from being completely cut off.

Typically, your surviving spouse could choose between the property you left to him or her in your will or a statutory share set by state law. Depending on the state law where you reside, this spousal share is usually one-third or one-half of your estate. The rules for calculating the amount of the share differ remarkably from state to state. Additionally, in community property states, the surviving spouse already owns half of the community property at the death of the other spouse.

The threat of will contest and the expense and delay they occasion prompts competent lawyers to encourage their clients to avoid completely cutting someone out. Instead, it may be advisable to leave the person a relatively small amount and put in an "in terrorum" clause. These clauses state that if the person contests the will, he will forfeit that small amount. The consequences of will contests are another important reason most people should avoid a do-it-yourself will. Lawyers are trained and experienced to prepare wills and will make sure the wording and execution is done according to the law. If it seems possible that someone may later claim that the testator lacked competence, the lawyer can produce qualified medical and other witnesses at the execution ceremony to ameliorate those claims.

Divorce

The effect of a divorce on the legality or sufficiency of a will depends on your state's law. In some states, a divorce decree will automatically revoke your entire will. In other states, a divorce will only revoke the provisions that would distribute assets to your former spouse, not the will itself. In either case, should you experience a divorce, you should review the property arrangements in your will. This is also true of other important documents, such as life insurance policies and bank accounts. This is such a fundamental principle that divorce courts frequently require litigants to address these issues as part of divorce decrees.

Dying Without a Will

If you die without having made a will (also known as dying "intestate"), the probate court will appoint a personal representative for your estate. This representative is frequently known as an "administrator." The administrator will receive creditors' claims against your estate, pay debts, and distribute your remaining property according to the laws of your state. There are many differences between dying testate and dying intestate. The main difference, however, is that an intestate estate is distributed to beneficiaries according to the distribution plan established by state law; a testate estate is distributed according to the decedent's instructions provided in the decedent's will. For more detailed information about intestacy, see the heading "Intestacy" in the Gale Encyclopedia of Everyday Law.

Guardians

A major impetus for making a will is to provide for the care of minor children. If you have a minor child or children you may want to choose a guardian to serve in your place should you die before your children reach the age of majority. There are two basic types of legal guardians: a guardian of the person and a guardian of the estate of minor children, but these functions can be performed by one person. The guardian of the person is responsible for decisions about the health, education, and welfare of the minor child. The guardian of the estate is responsible for the child's property and for managing finances for the minor child.

When one natural parent dies, generally the other natural parent is appointed as the guardian for minor children, whether or not the parents were married at the time. If someone besides a surviving natural parent of a minor child is named as guardian in a will, the surviving natural parent can contest that nomination. The court will then determine whether the appointment of the other parent as the guardian would be detrimental to the best interests of the minor child. Courts strongly prefer that children be placed in the guardianship of their natural parents whenever possible. It is very difficult from a legal standpoint to overcome this presumption. However, if both natural parents are deceased, it is important to name a guardian for minor children, to ensure the children (and their financial assets) will be cared for by someone the parents trust.

Life Insurance

It is not a good idea to name a beneficiary for your insurance in your will. This adds an unnecessary level of administration and expense as insurance proceeds become caught up in the probate process. Because life insurance proceeds generally pass to your beneficiaries free of the claims of your creditors, passing insurance proceeds through your will may unnecessarily subject your life insurance proceeds to your estate's debts. Currently, you may contact your insurance company to ask for a beneficiary form on which you name your life insurance beneficiaries. If your life insurance is part of your employer's benefit plan, your employer may provide you with insurance beneficiary forms. With the forms from your insurance company or employer, you may name the beneficiaries of your choice and file the new beneficiary designation with the insurance company or with your employer. Do not forget to ask for written confirmation that the form was received and properly filed. In the event of your death, the insurance company would pay the insurance proceeds directly to the beneficiaries you have named without having your beneficiaries going through the delay, expense, and trouble of probate.

Lost Wills

Sometimes, a family knows that a deceased relative made a will, but the will cannot be found. Missing wills raise many legal issues. The outcomes of these situations depend on the specific facts and circumstances, as well as on the law of the state in which the deceased resided. If the will is missing because the deceased attempted to revoke it, depending on state law, an earlier will or the state's rules on interstate succession would determine how to distribute the deceased's estate. If the will is missing because it was destroyed in an explosion or fire, the probate court may accept a photocopy of the will. The court may also accept the deceased lawyer's draft or computer file. In either of these cases, the court will require evidence that the deceased executed the original will according to state law.

Moving from State to State

The laws of all states differ with respect to wills. If you move to a different state after you make and execute your will, it may be a good idea to have your will reviewed by a lawyer in your new state. Basically, a will properly drafted and executed in your former state—and that would be valid in your former state—will typically be regarded as valid under the law of your new state.

Do not forget that the laws in your new state may be more favorable than the laws of your previous state. For example, your new state may have different processes to "prove" the will. Or your new state may permit some probate matters to be handled on a less formal and less expensive basis. Sometimes this can be accomplished simply by adding language that refers to certain statutory provisions in your new state's laws.

Sometimes complications will occur because different states maintain different statutory classifications of property. The differences between states without community property schemes and those that have them can create important complications. If your will was executed in a state that does not have a community property scheme and you subsequently move to a community property state (or vice versa), you may want to confer with a lawyer in your new state to determine whether to create a new will to achieve your intended result.

Revoking a Will

As mentioned above, a change in your marital status may revoke all of your will, or it may revoke the part of your will relating to your former spouse. If you are mentally competent at the time you do it, you can revoke your will by burning it, tearing it up, or otherwise destroying it. Be aware that revoking your will must be properly witnessed and recorded. If not, someone may later claim that your will was simply "lost" and not revoked. Thus, copies of the will you thought you had revoked can be produced and duly probated. Alternatively, someone may claim that you lacked mental competence at the time you "attempted" to revoke your will.

Probate

Probate is the process by which legal title of your property will be transferred from your estate to your beneficiaries. If you die with a will ("testate"), the probate court determines if your will is valid, hear any objections to your will, orders that your creditors be paid, and supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of your will. The cost of probating your estate is determined either by state law or by practice and custom in your community. The usual cost to probate an estate varies between 3% and 7% of the value of the estate.

Taxes

As part of his or her duties, your personal representative will file tax returns for your estate to report the assets of your estate. The personal representative will also file an estate income tax return to report any income generated by your estate. Federal estate taxes are the highest in the federal tax code. Currently, estate tax is levied on decedents' estates when the estate is valued over $675,000. This exclusion amount will rise in annual increments to $3.5 million in 2009. Federal estate tax rates range between 37% and 50% in 2002. Prior to 2002, the federal estate tax rate was 55%. This tax rate will drop 1% each year until it reaches 45%. The Federal Estate Tax begins in § 2001 of the Internal Revenue Code. (26 U.S.C. 2001). Merely making and executing a will does not reduce federal estate tax. However, through competent legal advice on estate planning, including the careful crafting of your will, you can minimize or avoid these taxes. Such tax benefits would not be available to you and your family if you died without a will.

Types of Wills

Do-It-Yourself Wills

So-called do-it-yourself are wills that individuals create themselves, usually with the aid of self-help legal literature. There are numerous guides, form books, websites, and fill-in-the-blank literature in the marketplace geared for non-lawyers. This material purports to help you create a valid will and avoid the costs of hiring an attorney to prepare a will for you. While this may be true in some cases, there is much to be cautious about. Mainly, the consequences of preparing a do-it-yourself will can be potentially devastating. If you die and your will is declared to be invalid, you will not be around to explain what you had intended to accomplish in your will. Instead, a probate court will either interpret your will or distribute your property according to the state intestacy scheme. Keep in mind that your will is an important legal document. If it is not prepared and executed according to state law, your entire will can be set aside by a probate court. Additionally, just about anyone who envisions an alternative distribution of your estate can contest a do-it-yourself will. If it does not meet some very stringent tests mandated by state law, the court can disregard your do-it-yourself will.

Oral Wills

Oral wills are those whose contents and terms are merely spoken to a witness or witnesses, but not written down. There is great potential for fraud or even simple misunderstanding in oral wills. In most cases an "oral will" is only recognized by a probate court when made by members of the armed services or merchant marine in active service in time of conflict. Oral wills are not uncommon in situations in which a person feels he or she does not have time to prepare a written will and have it properly executed.

Death-Bed Wills

Deathbed wills are those created and executed when the testator is facing imminent death. These wills may be perfectly valid and binding, but the closer to the testator's death the will is prepared the more likely it is to be challenged. The contest is usually based on a premise that the testator lacked sufficient mental capacity or was subject to undue influence. As previously stated, challenges can lead to costly and protracted will contests.

A deathbed will can potentially lead to errors. Its hasty preparation can be such that the will may not distribute the property in the manner that the testator intended. Hasty preparation can also fail to take advantage of some features that can reduce or eliminate the Federal Estate Tax. It is also more likely that the will would be found invalid because it does not conform to some legal requirement. These are some of the reasons many lawyers urge their clients or potential clients to create and execute their wills while they are still of sound mind and body.

Holographic Wills

A holographic will is one that you have written yourself. They are generally handwritten, although some states may allow for a holographic will to be created on a typewriter or with word processing software. These kinds of wills are not allowed in some states, but other states permit this kind of informal will. In states that permit them, the laws relating to holographic wills can be very specific or restrictive. For example, California requires that you write all material provisions entirely by hand and that you must sign your holographic will. On occasion, a holographic will is better than no will at all. In cases where the holographic will creates an ambiguity or an unintended result, it may have been better to have no will at all.

Self-Probating Wills

You can help simplify the probate process by adding to your will the affidavits (sworn statements) of the witnesses who saw you signing your will. When these affidavits are included with a will, it is sometimes called a "self-probating will." In the affidavits, the witnesses state that they saw you execute or sign the will, that you asked them to be witnesses to the will, that you appeared mentally competent at the time, and you acted voluntarily. Without these affidavits, the process is more complicated and lengthy. In those cases, the executor would usually need to contact the original witnesses and have them appear in probate court (if they can). Before the personal representative or executor can even file your will in probate court, the witnesses would usually appear in court (or sometimes provide an affidavit ) to state the circumstances surrounding the execution of the will. This testimony helps to "prove" that the will is genuine.

Probate courts usually permit your will to be filed along with the affidavits, without the need to summon witnesses or obtain new affidavits. The court then gives notice to other heirs at law who are given a specific amount of time to file any objections to the will being admitted to probate. If any of these choose to challenge your will, the probate court is more likely to require your witnesses to come into court (if they are still available) to testify about the circumstances in which your will was signed. In some states, self-authenticating affidavits are not accepted in situations where the testator dies shortly after the will is signed, or the will was not executed with the assistance of a licensed attorney.

Living Wills

A Living will is something of a misnomer. It does not direct how your property is to be disposed of after you die. Rather, it is a document that specifies the general kinds of medical care you would want—or not want—in the event you became unable to communicate with your health care providers. Living wills are sometimes known as "medical directives" or "medical declarations."

Additional Resources

The American Bar Association Guide to Wills & Estates: Everything You Need to Know About Wills, Trusts, Estates, and Taxes. American Bar Association, Times Books, 1995.

The Estate Planning Sourcebook Berry, Dawn Bradley, Lowell House, 1999.

Family Money: Using Wills, Trusts, Life Insurance and Other Financial Planning tools to Leave the Things You Own to People You Love. Silver Lake Editors, Silver Lake Publishing, 2001.

http://www.estateplanninglinks.com/ep.html#highlighted. "Estate Planning Resources." EstatePlanningLinks.com, 2001.

http://www.findlaw.com/01topics/31probate/index.html. "Wills, Trusts, Estates and Probate." FindLaw, 2002.

http://law.freeadvice.com/estate_planning/wills/. "Wills." FreeAdvice.Com, 2002.

http://www.nolo.com/lawcenter/index.cfm/catID/FD1795A9-8049-422C-9087838F86A2BC2B. "Wills and Estate Planning." Nolo.Com, 2002.

http://www.lawyers.com/lawyers-com/content/aboutlaw/taxation_3.html. "Inheritance and Estate Tax." lawyers.com, 2001.

http://www.mtpalermo.com. "Crash Course in Wills and Trusts." Palermo, Michael T., Attorney at Law, 2002.

Restatement of the Law, Property-Wills and Other Donative Tranfers, 3d Edition. American Law Institute, West Publishing, 1999.

The Wills and Estate Planning Guide: A State and Territorial Summary of Will and Intestacy Statutes. American Bar Association, The Association, 1995.

Wills and Trusts in a Nutshell. Mennell, Robert L., West Publishing, 1994.

Organizations

The American Academy of Estate Planning Attorneys

9360 Towne Centre Drive, Suite 300
San Diego, CA 92121 USA
Phone: (800) 846-1555
Fax: (858) 453-1147
E-Mail: infor [email protected]
URL: http://www.aaepa.com

American College of Trust and Estate Counsel

3415 South Sepulveda Blvd., Suite 330
Los Angeles, CA 90034 USA
Phone: (310) 398-1888
Fax: (310) 572-7280
E-Mail: info @actec.org
URL: http://www.actec.org

The National Academy of Elder Law Attorneys

1604 North Country Club Road
Tucson, AZ 85716 USA
Phone: (520) 881-4005
Fax: (520) 325-7925
URL: http://www.naela.com

National Network of Estate Planning Attorneys, Inc.

One Valmont Plaza, Fourth Floor
Omaha, NE 68154-5203 USA
Phone: (800) 638-8681
E-Mail: [email protected]
URL: http://www.netplanning.com/