Where there is a will, there are relatives – on notarized wills and dementia

Where there is a will, there are relatives – on notarized wills and dementia

Doron Afik, Esq.
May 18, 2021

Parents usually want to make sure that certainly during their lives, but even after their demise, the relationship between their children will be a good and loving relationship, however wills and inheritances are one of the major causes of conflicts between family members. Writing a clear will and in a way that cannot be attacked in the future is a very important thing to avoid conflicts and this is where the notarial will comes into the picture as a highly effective tool, especially when the testator is older or when her medical condition begins to deteriorate.

A 100-year-old woman summons a notary to her home; She presents him with a several-days-old psychogeriatric opinion showing that she is qualified to write a will; Sits with him by herself; Explains to him that she wishes to bequeath all her property one son (and not to the other three) and the notary prepares a will and later revisits her to her sign it. Shortly thereafter the woman dies and one of the children who was excluded from the will contends that the will is invalid, partly because the woman was not qualified to make a will due to her demented status. These are the circumstances of a verdict given by the Tel Aviv Family Court in April, 2021. In that case there was indeed an attempt to write a notarized will, the notary did not comply with the requirements of the law but nevertheless the Court ordered that the will is valid.

The Israeli Inheritance Law allows the creation of a notarized will, which has a significantly stronger status than an ordinary will, especially when there is a fear that someone may try to attack the validity of the will on the grounds that the will was not mentally competent when making the will. This possibility of attack exists mainly when the heirs are not in a good relationship in the first place or when the testator is of old age and there is a fear of a future contention that she was demented at the time of making the will and therefore the will is invalid due to lack of legal capacity. In this context it is important to note that when the testator is hospitalized or confined to her bed (even if she can get out of bed with assistance), a notarized will cannot be made unless the notary has first been issued a medical certificate by a doctor as at the date of executing the will, in which the doctor confirms that the testator is of legal capacity to make a will.

The procedure for creating a notarial will is different from the procedure for creating a regular will and it requires the notary to read the will to the testator, make sure she understands the content thereof and verify the legal capacity of the testator to make a will. In the case described above the notary relied on a medical certificate which was several days old and therefore the will did not meet the terms of a notarized will but nevertheless the Court eventually gave it validity.

This case further strengthens not only the need to create a notarized will (and not an ordinary will) in cases where there is a fear of a future dispute, but also the need to use an experienced notary who can assist the testator to create a legible will, which will not cause issues the future, once it is probated. A proper notarial will is a will that can hardly be attacked in the future on the grounds of defects in the capacity of the testator or defects in the will or in the process of writing it.