Q: But in the opinion you answered.
A: In the opinion, I said that in the absence of the ability to determine that she was incompetent, she has the presumption of law that says she is competent until proven otherwise."
- The obvious conclusion is that although the deceased's competence was not revoked by the expert, it cannot be ignored that he did not unequivocally determine that she was competent to sign the legal documents, and in this case, the will of February 9, 2012. In this context, it should be noted that the plaintiff claimed in her summaries (p. 17, paragraph 12) that Prof. Maaravi determined that the deceased was competent, but that his determination was that her fitness could not be denied, whereas in his testimony it was emphasized that she had a presumption of competence.
- In order to prove their claim that the deceased was not fit to make a will, the objectors brought family members to testify. The first witness is the deceased's nephew, Mr . who testified at the evidentiary hearing. The witness claimed that already in the years 2009-2010 there was a deterioration in the deceased's health condition, that he visited her every week and noticed for himself that her memory was not at its best, for example, when she claimed that the sons of her slave girl who had passed away were still alive, that the house in which his family lived was not their home and that they should return to their home, she referred to her son as her husband (see at p. 160 of the Evidentiary Hearing, Question 23 onwards, and also at p. 169 in question 14).
- The second witness who was summoned to prove the opponents' claim of the deceased's incompetence is . The witness testified that beginning in 2009 there was confusion in the deceased, which worsened in 2010, and that since 2012 the deceased has needed the assistance of a caregiver on behalf of the National Insurance Institute (p. 177 of the evidentiary discussion, in paras. 1-11).
- The conclusion that arises is that according to a medical document attached by the opponents, in 2009 the deceased began to have cognitive decline. The testimonies of the family members on behalf of the opponents confirmed that the deceased's confusion and memory decline had indeed begun as early as 2009.
- On the one hand, the expert noted that it was not possible to determine that the deceased was not competent to sign legal documents, but on the other hand, he clarified that since there is no real determination that the deceased is not legally competent, it is presumed that she is competent.
- This conclusion of the expert is not sufficiently helpful in deciding this issue, since it is clear that in most cases of this type, an expert will be required to rely solely on medical documents and not on a physical examination of his case, and it is not impossible that in many cases there will be no real-time document confirming his competence/incompetence.
- To this, it should be added that medical documents from the period close to the date of making the will and even before that confirm that there is cognitive decline in the deceased.
- Nevertheless, at this stage of the judgment, I do not draw unequivocal conclusions regarding the opinion and its implications for the outcome of the proceeding, and the explanation will be presented below.
"Unfair influence"
- As may be recalled, the opponents claimed that the plaintiff had unfair influence on the deceased, by virtue of her being a lawyer in the Palestinian Authority, who handled the deceased's various affairs and even took over the family's assets, and lived with the deceased, worked in the office of the attorneys of the wills and her witnesses. The opponents claimed that if the deceased signed the will, she did so under deception, oppression and deception, under pressure and influence.
- Section 30(a) of the law states that a will made due to rape, threat, unfair influence or fraud is void.
- In a formally valid will, the burden of proof for a claim of unfair influence is on the person claiming it:
"A will in which all the formal requirements were met is presumed to be valid, and the person who claims its invalidity must have proof. In such a will, the burden of proving a claim of unfair influence is placed on the person who claims it."