A person writes a will and wishes to bequeath the assets to his children. Naturally, the children also help him prepare the will, drive him to the lawyer, maybe even stay in the room during the meeting to assist the parent, but discover years later that the bequest to them under the will is disqualified and that the will of the parent is not respected. Why is that?
One of the most common issues in will related Court disputes is the of the beneficiery’s involvement in the process of execution of the will.
If the probate proceedings were held in New York State, involvement of a beneficiary in the process of execution of a will would cause the will to be cheked under strict scrutiny to ensure that there was no unfair influence. A beneficiary who was also one of the witnesses to the execution of the will would not receive more than such beneficiary’s intestate share, unless two other witnesses were present. In Israel, however, the law sets that a beneficiary who was involved in its execution is disqalified as a beneficiary. The law contains a broad definition of “involvement”, which includes any person involved in the drafting of the will, any person acting as a witness for the signing of the will and any person who otherwise took part in its preparation, however the Courts tend to construe the law in a lenient manner to enable validity of wills.
A case recently decided by the Court a deceased left a will in which she granted most of her assets to one of her daughters, while the rest of her children were left out. Such deughter knew in real time the wish of the deceased to make a will, drove her to an attorney of her and a contention was raied that she also influenced the deceased to sign the will. The Court held that the mere fact that the beneficiary drove the deceased to the lawyer and knew about the deceased’s wish in advance does not show that the beneficiary took part in the preparation of the will or unfairly influenced the deceased to sign the will.
In an even more extreme case, a father who was in a nursing home requested his son to help him change his will so that the son would be the only heir and asked him to approach to a lawyer to draft such new will. The son approached a lawyer and conveyed to him the details of the father’s wishes. After two weeks he went to the lawyer, took the printed will and brought it to the nursing home, where it was signed before two witnesses. Nevertheless, the Supreme Court held that the son was merely acting as messenger, a natural thing in light of the trust between the parties, and was not considered to have taken part in the preparation of the will.
Life experience shows that there are quite a few situations that are not “black or white”, and without proper advice and guidance may lead to difficult, long and exhausting disputes. Therefore, prior to making a will, it is recommended to consult with a lawyer knowledgable in the field and and certainly have such a lawyer draft the documents.