Wills file (Jerusalem) 13282-01-23 Anonymous v. Anonymous - part 5

See CA 4902/91 Shdema Goodman v.  Yeshivat Shem Beit Midrash High for Teaching and Dayaniut, 49(2) 441 (1995)

90. In Civil Appeal (Family Tel Aviv-Jaffa) 46864-07-21 Anonymous v. Anonymous (Nevo 07.11.2023) it was held regarding the burden of proving unfair influence:

" It was further held in the case of burdens that when the circumstances indicate the existence of the testator's dependence on others, which is so comprehensive and thorough that it can be assumed that the testator's free and independent will has been denied, then the burden of proof rests on the applicant for the fulfillment of the will.  However, even if a presumption is established, it is only capable of transferring the burden of bringing the evidence to the applicant for probability, while the burden of persuasion to prove the claim of unfair influence will continue to rest on the objector to the will, according to the balance of probabilities.  "

91. In DNA 1516/95 Rina Marom v. Attorney General 52(2) 813 (1998), also cited above, auxiliary tests were established to help examine whether this is an unfair influence, inCivil Appeal (Family Tel Aviv-Jaffa) 42187-11-19 E.G.  v.  Y.A.  (Nevo 26.06.2022) detailed the various tests: the dependency and independence test; the dependency and assistance test;test of the testator's relationships with others; A test of the circumstances of making a will and involvement.
92. These tests are not cumulative, they must be used with great caution and they are not dependent on each other, all in accordance with the circumstances of the case (C.A. (Tel Aviv-Jaffa District) 1100/05 Anonymous v.  Anonymous (Nevo 06.04.2009)).
93. In our case, there is no dispute that the plaintiff lived permanently with the deceased and cared for her, and the objector herself confirms these things. In addition, it appears that the plaintiff was indeed the one who handled the general legal affairs of the family, and it is very possible that the deceased relied on her and her judgment.
94. However, these two figures are not sufficient to determine unfair influence (in any case they were not examined in depth in the course of the proceeding), and the additional arguments of the opponents must be addressed.
95. Since the opponents completely rule out the possibility that the deceased voluntarily signed the will, they summoned the attorneys who wrote and approved the will to testify.

Testimony of Adv. Sani Khoury

96. The lawyers had prior acquaintance with the plaintiff, and she even worked for Adv. Kuttab (see pp. 18, 10-27, pp.  53, 15-20).
97. For the most part, the two attorneys handled the plaintiff's family affairs (see p. 22, paras.  3-5).  In recent years, the lawyers have not dealt with any matter related to the plaintiff (see p.  35, paras.  13-26).
98. The deceased's will was made at the request of the plaintiff (see p. 49, paras.  1-22).
99. Khoury and Adv. Hanna prepared the will, in accordance with the instructions they received from the plaintiff, when the contact in this matter was with her. Adv. Khoury did not recall whether there was a frontal meeting with the plaintiff or whether the contact was over the phone (see pp.  50, paras.  1-20).
100. The instructions were given to Adv. Khoury by theplaintiff, and it was Adv. Hanna who printed the will (see pp. 50, paras.  23-35).
101. The will was drawn up in accordance with the Applicant's instructions, when there was no contact with the deceased (see p. 51, paras.  4-9).
102. Prior to the signing of the will, it was not sent to the plaintiff or to the deceased (see p. 51, paras.  10-13).
103. The will was signed in the home of the deceased who lived in ***** and not in ****** as written in the will. Attorneys Khoury and Hanna went there (see p.  51, paras.  14-27).
104. Khoury did not recall whether the plaintiff was present at the signing of the will (see p. 51, s.  28-33, p.  63, s.  26-28, p.  65, s.  13-15), and he does not remember whether he asked the deceased to identify herself to him at the time the will was drawn up (see p.  53, s.  4-14).
105. Khoury testified that he asked the deceased why she wanted to bequeath all her property to the applicant, and the deceased explained to him that she trusted the plaintiff to take care of the entire family, and he did not know that there was any dispute in the family at the time (see pp. 58, paras.  3-23).
106. The deceased wanted to grant the entire estate to the plaintiff, in the belief that she would not deprive her brothers (the opponents) of their rights (see pp. 60, 6-7).
107. The will was according to what the plaintiff told attorneys Khoury and Hanna, and no changes were made to the date of signing the will at the deceased's home. They read the will to the deceased, and asked the deceased if she was sure that she wanted to give everything to the plaintiff, and the deceased said yes, because she would take care of everyone (see pp.  60, 21-27, pp.  73, 17-21).
108. The will is not forged (see p. 61, paras.  22-25).
109. Khoury knew the deceased before the will was drafted, met with her, and handled a number of matters for her (see pp. 62, paras.  13-26).
110. When the deceased contacted Adv. Khoury, it was Usually through the plaintiff (See p. 63 s.           5-8, 13-14).
111. At the meeting itself, the deceased was competent and understood what she was doing, and explained why she bequeathed in this manner (see p. 63, paras.  15-23).  Cognitively, the deceased spoke and understood what it was about (see pp.  78, 33-35).
112. Although it was the plaintiff who called Adv. Khoury and told him the deceased's desire to make a will and what its contents were, in the circumstances of the case Adv. Khoury did not see anything unusual in it, and when he went to the deceased's home to sign the will, he intended to verify and explain the matter to the deceased (see pp. 66, 67 Q.  1-7).
113. The deceased read the will and understood what she was signing (see p. 68, paras.  2-5).
114. When asked why the plaintiff filed an application for an inheritance order even though she knew about the will, he claimed that she had apparently forgotten about the will (see pp. 71, paras.  28-36).
115. Khoury does not recall the irrevocable power of attorney (which is the subject of the related proceeding) and did not handle it (see pp. 72, paras.  5-17).

Testimony of Attorney Maher Hanna

116. The plaintiff worked in the office where Adv. Hanna worked, as an employee for a certain period of time (see p. 111, paras.  14-20).
117. Hanna represented the plaintiff in legal proceedings for a long period of time (see p. 116, paras.  6-13).
118. The attorney does not remember the details of the deceased's will, but he certainly would not have signed a will whose contents the testator does not know "in a million percent" (see pp. 121, 10-27).  The attorney reiterates that "there is no way" that the deceased did not sign in front of him and did not know what she was signing (see p.  125, paras.  18-19).
119. Hanna does not remember the circumstances of the drafting of the deceased's will, but sees that he signed it and the writing looks like the format on his computer (see pp. 121, 32-35, pp.  122, 1-10).
120. It is reasonable to assume that it was the lawyer who printed the will, he is sure that the will was signed in the home of the deceased B***** (see p. 123 of the proclamation).
121. The attorney reiterates that he does not remember the circumstances (see p. 124, paras.  10-20).
122. The attorney argues that this is a standard will with the same format and the same wording that Adv. Hanna uses (see pp. 126, paras.  29-32).
123. The attorney's testimony added to the ambiguity that already exists. In fact, Adv. Hanna testified that the deceased understood the contents of the will, but Adv. Khoury testified that the will was made at the plaintiff's request and in accordance with her instructions. 
124. Although in her summaries the plaintiff sought to explain the meaning of Adv. Khoury's testimony and completely rejected his testimony that she was involved in the drafting of the will, it is not impossible to conclude that his testimony is correct, since the plaintiff worked in the office of Adv. Khoury and Hanna, she is a lawyer herself (with a license to practice in the field in the PA territories), she was the one who managed all the affairs of the family, including the extended family (see her testimony on this matter at p. 217 of Peru, in paras.  12-17), she lived permanently with the deceased, and took care of her and her affairs on a regular basis.
125. To this it should be added that Adv. Khoury has no interest in the proceeding and there is no reason for him to testify what he testified. Khoury left a reliable impression and it is highly doubtful that he will sin in his position, and as a court clerk he will testify falsely, according to which the plaintiff was involved in the drafting of the will, while she was not actually involved.
126. In this context, in her testimony, the plaintiff denied that she was a partner in the drafting of the will or knew about it:

The plaintiff's testimony

127. The plaintiff claims that she did not know anything about the will as of 2014 (see pp. 208, paras.  28-35).  The first time she knew that there was a will was when it was filed in the court file (see p.  229, paras.  28-29).
128. According to the plaintiff, the deceased was the one who drafted the will, she had nothing to do with the will, she did not ask Adv. Khoury and Adv. Hanna to make a will for the deceased, and she was not present when it was signed (see pp. 209, paras.  4-17).
129. In her summaries, as stated, the plaintiff sought to reject the testimony of Adv. Khoury regarding her involvement in the drafting of the will, and that the deceased asked to grant her all her property, knowing that she would divide it among her (the deceased's) children.
130. So far, I have been persuaded that the plaintiff was involved in the drafting of the will, she was the one who instructed the attorney what to write in the will, knew its contents very well and is the sole beneficiary of all of the deceased's assets (the deceased has a number of real estate assets).

Involvement in the drafting of the will

131. As is well known, involvement in the drafting of a will refers to the actions of a beneficiary of the will (or his spouse) in the preparation or drafting of the will, and it establishes an absolute presumption of unfair influence, which leads to the nullification of the provision of the will that entitles the person involved, even if no actual influence has been proven.
132. Section 35 of the Inheritance Law states that a provision of a will that entitles the person who drafted it, or witnessed its making, or otherwise took part in its drafting, is void. This provision establishes an absolute (irrevocable) presumption regarding the existence of unfair influence, and it means that the very involvement, as defined in the section, leads to the nullification of the provision of the will in favor of the person involved, and it is not possible to contradict this presumption even if it is proven that there was no unfair influence in practice and that the will reflects the true will of the testator (see CA 234/86 Emunah - National Religious Women's Movement v.  Baller (December 15, 1988) (hereinafter: "the Blair case"); CA 1079/92   Gedalya v.  Dali (November 14, 1993); CA 6496/98 Butto v.  Butto (04.01.2000); Shmuel Shiloh Commentary onthe Inheritance Law, Volume 1 (1995) | Section 35: A will for the benefit of the person who took part in its drafting).
133. The phrase "took part in its editing" is a flexible expression, filled with content according to the special circumstances of each and every case, and the test is ultimately the "common sense test." The case law determined that section 35 should be interpreted in a strict and restrictive manner due to its harsh consequences, but at the same time, there is a trend that makes it possible to expand the interpretive framework of "taking part in a different way" to include many more cases. The question of whether the beneficiary took part in the drafting of the will will be examined according to the degree and severity of the involvement; The heavier, crude, and deeper the beneficiary's involvement and activity, the more the court will tend to view it as invalidating the will (see, for example, the Beller case; Benny Don-Yehia, The Theory of Inheritance Law (2024) | Gate 17 (Objection to Wills and Cancellation of Wills).
134. However, the case law has determined that not every action related to a will will be considered involvement that disqualifies it. However, in our case, when the plaintiff is the one who instructed Adv. Khoury what to write in the will when she is the sole heir of all of the deceased's assets, she coordinated the visit to the house in which the deceased lived, a visit intended for the deceased to sign the will, all of these constitute involvement in its preparation in a manner that has the potential to have an unfair influence, even without the need to prove the unfair influence.
135. To this, it should be added that Adv. Khoury testified several times that he asked the deceased and she replied that she bequeathed her assets to the plaintiff since she would take care of all the family members. Although the plaintiff rejected this claim/testimony in her summaries, given that the plaintiff was indeed the one who managed the family's legal affairs, including the extended family, and given that there is external testimony confirming this (the testimony of Adv. Khoury, as stated), it is more likely that the deceased did indeed grant her property to the plaintiff in her will when she relied on her to take care of all her children.
136. However, this detail does not appear in the will, and it is possible that the plaintiff's intention was to inherit all of the deceased's assets alone.
137. This reason alone (involvement in the drafting of the will under unfair influence) is capable of annulling the will.
138. In the margins of these words, I will note that the question arose as to why the Applicant initially filed an application for an inheritance order when there is a will signed by the deceased, but since I have no answer to the question, we can only speculate as to what the reasons are, but the judgment cannot rely on conjectures.

Defects in the Will

139. In addition to the above, during the evidentiary hearing, it became clear that the will had formal defects, such as an incorrect ID number and an incorrect residential address. If this were an exclusive claim for defects without other claims, it is doubtful whether it could have been accepted, since on the face of it these are technical defects that can be easily cured, but given that I am under the impression that the plaintiff was involved in the drafting of the will, gave her drafters explicit instructions on how to bequeath (her) the deceased's assets, this strengthens the conclusion that the will does not constitute the will of the deceased testator.  and that the flaws are more than "technical".

Interim Summary

140. It seems to me that the conclusion that the plaintiff was involved in the drafting of the deceased's will is sufficient to bring about its annulment. However, since this conclusion is based solely on the testimony of Adv. Khoury, testimony is very important and substantial because he wrote the will and it is he who approved it, in any case, all the data lead to the conclusion of the plaintiff's unfair influence on the deceased: the fact that the plaintiff lived with her, the treatment of her and all her bureaucratic, legal, and family affairs, the fact that the deceased's cognitive decline began as early as 2009, and the conclusion of the late Prof.  Maaravi that the absence of a document denying her competence had a presumption over the deceased Because she was competent to sign legal documents - but there is no unequivocal answer confirming that she was competent, the plaintiff worked with the attorneys who wrote the will, there are technical defects in the will that undermine its validity, the fact that the plaintiff inherits all of the deceased's assets.

The Rule of the Intertwined Threads

141. In LA 4459/14 Anonymous v. Anonymous (Nevo 6.5.2015), the "intertwined threads rule" was held.  It was held that although the various grounds that were claimed do not have the power to invalidate the will independently, it is possible that when we weave these grounds together, a broader and more comprehensive picture will emerge, and from this fabric it is possible to draw the conclusion that there was "unfair influence".
142. This is also the case at hand, and the above is sufficient to bring this conclusion.

Conclusion