Wills file (Jerusalem) 13282-01-23 Anonymous v. Anonymous - part 2

Request to Cancel/Amend an Inheritance Order/Probate of a Will

51. Given that there is an inheritance order dated November 26, 2020, the question of cancellation or amendment of an inheritance order / probate order must first be clarified. The matter is regulated in section 72(a) of the Law and in section 27(c) of the Inheritance Regulations, 5758-1998 (hereinafter: the "Regulations").
52. Section 72 of the Law is an exception to the rule of finality of the hearing:

 "In this context, we should also note that the case law determined that section 72(a) of the Inheritance Law: "It is true that an opening is opened for deviation from the rule of finality of the hearing, but this opening is not the same as the opening of a hall"

See LCA 8920/08 Ghana'im An'am Hamzah v.  Custodian General (Nevo 13.05.2010)

53. It appears from the provisions of the law and the regulations that the court may cancel or amend a probate order/inheritance order, based on facts or arguments that were not before it at the time the order was issued. However, the court may not rely on a fact or argument that the applicant for cancellation or amendment could have brought before the order was issued or could have brought it afterwards and did not do so at the first reasonable opportunity.
54. The court has the discretion to accept a request to cancel or amend an order even if it was not filed at the first reasonable opportunity (see CA 601/88 Estate of the late Michael Roda v. Varda Schreiber, 47(2) 441 (1993))
55. In Civil Appeal (Family Tiberias) 41070-08-10 Michael Gashok z"l vs. Yaakov Weissman (Nevo 04.09.2011) the guidelines for exercising judicial discretion in motions to cancel or amend orders under section 72 of the Law were summarized , as arose in the different case law quoted there.
56. In his case, the plaintiff claims that she did not know at all about the existence of the will, and that it is a fact that she filed an application for an inheritance order from the outset. According to the Applicant, it was only in the framework of the proceeding related to the cancellation of an irrevocable bond (FC 61361-0519), with the notice of Adv. Maher Hanna, as submitted there on November 9, 2022, that the plaintiff discovered that the deceased had made a will.  At that time, she petitioned for the cancellation of the inheritance order issued at her request, and the application for an order to probate a will was filed.
57. If the plaintiff indeed learned of the existence of the will only in the framework of the related proceeding in which she and the deceased were sued for the revocation of irrevocable bonds, then a delay cannot be attributed to her. In any event, prima facie, the filing of the application for an inheritance order that the plaintiff filed at the time, substantiates her claim that she did not know about the existence of the will.
58. However, later on, there will be testimony that the plaintiff was in fact a partner in the making of the will, a detail that undermines her claim that she did not know about its existence, but I will address this later.

Eligibility of a Mitzvah to Make a Will

59. Section 2 of the Legal Capacity and Guardianship Law, 5722-1962 establishes the "presumption of competence" of a person to conduct legal actions unless he is limited to doing so.
60. Section 26 of the Inheritance Law states who is not eligible to make a will:

"A will made by a minor or by a person who has been declared invalid or made when the testator did not know how to discern the nature of a will is void."

61. The case law interpreted the term "to discern the nature of a will" as a situation in which the testator is aware of the following: the very fact that he signed the will, the extent of his property, who inherits and who is dispossessed and their expectations (see LA 3539/17 Anonymous v. Anonymous (Nevo 11.06.2017)).

Was the deceased competent to make a will?

62. One of the defense arguments of the opponents is that the deceased was not legally competent to make a will.
63. The disqualification of a will due to incapacity will be made only when there is unequivocal evidence of the date the will was drafted/signed and it can be clearly determined that the testator was incompetent, in the place of doubt we will keep the will and it has not been revoked (see CA 5185/93 Attorney General v. Rina Marom, 49(1) 318 (1995); see CA 1212/91 LBI Foundation v.  Felicia Binstock, 48(3) 705 (1994)).
64. In most cases, the court will use a medical opinion that was ordered by the testator, in order to determine the testator's competence. However, testimonies from people from real time can override an expert opinion that may be missing because it constitutes an "autopsy" (see AP (Central District) 60984-12-16 Anonymous v.  Anonymous (Nevo 29.03.2018); see AP (Tel Aviv District) 38138-09-11   v.  S.  v.  A.  M.  K.  (Nevo 14.04.2013)).
65. In this case, the opinion of Dr. Shafiq Masalha was first submitted on the question of the fitness of the deceased, who , according to medical documents submitted to the file and brought to his attention, began to develop dementia in 2009, and concluded that she was not mentally fit to understand the meaning of the documents she signed.
66. However, with the consent of the parties, an additional opinion was submitted by Prof. Maaravi, who expressed his opinion and argued that in the absence of an indication of this, it was not possible to determine that the deceased was not competent to prepare legal documents.
67. Although an expert opinion on behalf of the court carries great weight, the court is the final adjudicator on both factual and professional questions, and is not bound by the expert opinion. The opinion is one piece of evidence from the totality of the evidence, and the court may decide which conclusions to draw from it, adopt it in whole or in part, or reject it, at its discretion (see, for example, Crim.  Appeal 3766/24 State of Israel v.  Anonymous (March 26, 2025)).
68. The court will adopt the expert's findings on its behalf, unless there is a clear reason, there is an exceptional factual or legal justification, or weighty arguments that justify a deviation. A deviation from the opinion will be made in exceptional cases in which the expert acted in contravention of the rules of natural justice, in bad faith, or when a gross, significant and glaring error in his opinion turned out, or the factual basis on which it is based is unreliable.
69. In our case, it should be noted that this is an expert opinion that he has experienced in relation to the rest that he has never met and a retrospective opinion ("post-mortem"). Therefore, there is an inherent disadvantage in the opinion, since it is given without a physical examination of the deceased, and there is certainly no examination of it by the deceased in real time.  This opinion is therefore based only on an analysis of the deceased's medical documents, and is entirely a 'post-mortem analysis' (see in this regard the aforementioned and also Civil Appeal (Family Tel Aviv) 100760/09 Yaakov v.  Makhkashvili [Nevo] 3.10.2013 and Inheritance and Estate Law, p.  121).
70. 00In such cases, the case law held that the court may use other evidentiary material, which concerns the condition of the testator at the time the will was made, such as: testimonies of persons who knew the deceased on the relevant dates and can enlighten the court regarding the condition and functioning of the deceased; doctors who treated him directly at the relevant times; an attorney who drafted the will; and even prefer their testimonies to the medical opinion (see the above and also inheritance and estate law, 121; CA (Tel Aviv-Jaffa District) 1677/05 Anonymous v.  Y.  Q.  The Temporary Estate Manager [Nevo] (August 14, 2006), paragraph 46 of the judgment.

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71. In his case, the opponents claim that, contrary to Prof. Maaravi's conclusions, the deceased began to lose her capacity as early as 2009, and also claim that he cannot give his opinion on the question of the deceased's fitness in 2012.
72. It should be emphasized that the conclusions of Prof. Maaravi's opinion are that given that there is no document stating that the deceased is incompetent as of the date of drafting legal documents (such as a will and irrevocable legal documents), it cannot be ruled out with certainty that she was not legally competent.
73. The opponents disagree with the conclusions of the opinion, claiming that the deceased professor did not know the details of the case and did not review the medical documents presented to him. In order to prove their claim of incapacity, the objectors attached a medical document of the deceased dated April 30, 2009, in which it was stated that there was an impression that this was a dementia disorder due to degenerative background, and that it was apparently Alzheimer's disease.  It should be noted that this document was brought to the attention of Dr.  Masalha, who drew a different conclusion from Prof.  Maaravi (but as will be recalled, it was not questioned either in the framework of this proceeding or in the related proceeding, about the opinion of the Attorney General).  The document was scanned in the objection letter.
74. The opponents also attached reports from the National Insurance Institute, and in the report of February 15, 2012, it was noted that the deceased suffered from memory loss, did not know the name of the attending physician or the current date, mentioned her parents as if they were still alive, that there was evidence of cognitive decline, etc. The document was attached to the objection and was not marked as an appendix.
75. A perusal of Prof. Maaravi's testimony shows that indeed the medical document from 2009 in which the deceased's cognitive decline is mentioned was not brought to his attention and was not taken into account in the framework of the opinion (p.  8 of the pro discussion of November 23, 2022 in the related proceeding, paras.  24-28), a response to the interrogation of the opposing attorney:

"A...  It is possible that she had a loss of memory even before that I didn't see it in the documents, I can't say, I rely on what's in front of me.