Who’s will is it any way ?

Who’s will is it any way ?

Written by

Osnat Nitay
February 1, 2024

A couple made a mutual will, in which each bequeathed to the surviving spouse. In the will it was also stated that upon the demise of the remaining spouse, the remainder of the estate will be divided equally between their joint children. However, upon the death of the man and even before the issuance of a probate order, the woman renounced the estate in favor of one of the sons. Can a person prevent his heirs from deciding what to do with their share of the estate and change the way the estate is distributed?

Israeli law allows an heir to withdraw from the estate before it is divided and thereby transfer his share to another, who is of the deceased's initial circle (spouse, child or sibling of the testator) and at the same time the law allows to prevent this through the mechanism of "an heir in lieu of an heir" - stipulating in advance the order of the heirs so that if a particular heir does not, for any reason inherit, an alternate heir is predefined. In such a will, the first heir may indeed renounce his share, but it will be transferred only to the person designated as an alternate in the will. In a case discussed at the Haifa Family Court in September, 2022, a will of a man set an arrangement under which his wife inherits their apartment, but if she predeceases him, the estate will be divided between their two children. After the father's death, the mother transferred the apartment to one of the sons, and the Court found that once the mother inherited the apartment, she was entitled to do whatever she wanted with the estate. In another case, discussed at the Family Court in Tel Aviv in October, 2023, a couple made mutual wills with a clause that allowed each to change the will and an arrangement under which the surviving spouse inherits the estate but if they both die at close proximity, the inheritance will go to their nephews. Upon the man's demise, the wife prepared a new will and the Court upheld it.
Israeli law also allows a mechanism of "an heir after an heir", (similar to the Common Law “Life Estate” principal) in which the testator determines who the heir is after his death, and who inherits what is left of the estate by that heir. In this type of a will, the first heir cannot bequeath what is left of the estate other than as set in the will of the testator, but he is allowed to use the estate and may also transfer the assets of the estate as a gift while he is still alive. In a case discussed in the District Court of Tel Aviv in December, 2023, spouses signed a mutual will in which they agreed that upon the death of one of them, the spouse would inherit his share and what would remain upon the death of the other would be divided in such a way that the son would win 80% and the two daughters the remainder. Upon the demise of the husband, the mother renounced the estate in favor of the three children in equal parts. The Court found that because it is an heir after an heir, the woman has the legal right to withdraw from the will for the benefit of the children.

Especially when a person seeks to ensure what will be done with his property upon his demise, but also in other cases, wills are a much more complex issue than it appears to the eye, and there are many issues that a novice lawyer would not be familiar with. Therefore, it is very important when preparing a will to consult with a lawyer with extensive experience in the field in order to consider all legal options to ensure that the will would indeed reflect the testator's future wishes regarding his estate when the time comes. In many cases, it is also worth considering a notarized will, which will ensure that it will be very difficult to contest it in the future, especially when the testator is relatively old and certainly if the testator is in poor health conditions at the time of making the will.