Family file (Nazareth) 11834-06-20 R.G. v. H.A.

1. The claim is for the cancellation of a gift agreement dated May 30, 2013, in which the rights of the deceased father in apartment B --------- in Gush -------, plot: -------, subplot: -------- (hereinafter: "the apartment" or "the house") were transferred to the defendants in equal parts on July 29, 2013.
2. The parties to the proceeding, the plaintiffs and the defendant are brothers (hereinafter: "the brothers"), the children of the deceased G.B.The late A.Z.  (hereinafter: "the deceased") who passed away on May 2, 2019.
3. The defendant is the defendant's husband and the deceased's son-in-law.
4.  According to the plaintiffs, the gift agreement was drawn up at a time when the deceased was under unfair influence and in a serious medical condition due to mental illness for years and years, to the point of inability to understand the nature of the transaction and express free will, and they are entitled to their share of the deceased's inheritance by virtue of their legal heirs.
5. The deceased Oleh was suffering from schizophrenia.  He was hospitalized several times for the mentally ill from 1958 until his last forced hospitalization in 1985.  Then he showed violence towards himself and his family.  The National Security Council recognized the deceased as a patient with chronic precoid schizophrenia in 1979 and was determined to have a general disability of 100%.  Since 1985, there has been no medical documentation of psychotic attacks.
6. The deceased's wife (the brothers' mother) also suffered from mental illness, so in 1980 the Great Rabbinical Court in Jerusalem allowed the deceased to marry a second wife.  The deceased divorced his second wife in 1985.
7. In 1990 the deceased married his third wife, and in 1994 they had a daughter who suffered from a severe nursing disability, whom the deceased cared for and cared for together with a foreign caregiver until 2014 and another year alone until she passed away in 2015 (hereinafter: "B.  A.").  The third wife was also ill and died in 2004.
8. The mother of the brothers, who was in a nursing home due to her condition and was defined as confidential, was registered by the plaintiffs as an additional plaintiff, while an argument was raised on their behalf that in accordance with the partnership rule, half of the rights in the apartment that is the subject of the lawsuit should be considered as her property and therefore she is entitled to relief.
9. Later, after the mother was appointed as a legal guardian, the guardian claimed that she was not an heir under section 146 of the Inheritance Law.
10. In my decision of August 27, 2021, I referred to the case law according to which where according to the Property Relations Law or the presumption of partnership, the marital life has ceased, then from that date onwards, and for the purpose of section 146 of the Inheritance Law, the spouse, even if he is still married to the testator, cannot claim rights by virtue of inheritance in his spouse's estate, for an accumulation period after the date of the rupture.

I determined that the proceedings for the purchase of the apartment began when the deceased was married to his third wife and lived with her in an apartment that was purchased by him in 2004 and registered in his name.  This purchase was made about 24 years after the deceased was granted a permit to marry a second wife.  In these circumstances, I ruled that the partnership rule does not apply and that their mother should not be regarded as the owner of rights in the apartment, in light of this, I ordered her to be deleted as a party in the letter of claim.

1. On January 8, 2017, the deceased made a will in the presence of witnesses in which he bequeathed his rights in the apartment in equal parts to the defendants.  This will was not executed.  Nor was an inheritance order issued for the deceased.
2. At the request of the plaintiffs, on August 26, 2021, I ordered the appointment of a psychogeriatrician, Prof.  -------, for the purpose of providing an opinion regarding the deceased's fitness at the time of drafting the waiting agreement, taking into account the medical history of schizophrenia, taking regular medications and multiple illnesses.
3.  The medical opinion was prepared on January 18, 2022, in which it was determined that: "The deceased, on May 30, 2013, did not suffer from an acute cognitive disorder due to his physical problems and the medications he took (he was not in an acute state of delirium) and did not suffer from an ongoing neurocognitive disorder (such as dementia) or any psychotic state (delusions, hallucinations) as part of his schizophrenia..." and concludes that the deceased's illness did not impair his ability to discern the nature of the gift agreement.
4. Despite the expert's determination, the plaintiffs did not ask to interrogate him and did not ask him questions for clarification.  As a result, I asked for their position on whether they were standing by their claim, and the plaintiffs announced that they were insisting on further clarification of the proceeding.
5. The Ottoman Settlement [Old Version] 1916I note that in the background of the proceeding, this is a family that was cared for for many years by the Welfare Department, and due to many circumstances, including sexual abuse and physical violence by the deceased, the children of the family were removed from their parents' home and raised in institutions and foster families.  The scars and residues of the past arose in the testimony of the parties and constitute an explanation for the complex relationship between them and the deceased and the lack of a real connection between them over the years.

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)

1. The parties' arguments

The plaintiffs' arguments

1. According to the plaintiffs, after hearing the testimonies, the defendants' conduct was revealed.  It was claimed that by controlling the deceased, creating a false representation of concern for the deceased and his heart.(while in practice he was in a state of neglect, dressed in tattered clothes and without proper personal care), disgraceful exploitation of their personal and health situation, identification of the situation in which disputes were discovered between the deceased and plaintiff 2 in order to exploit him while concealing their true intentions from the eyes of the other brothers - the defendants promoted a plan aimed at taking control of the deceased and bringing about the dispossession of the plaintiffs of his property.
2. According to them, in order to achieve this goal, the defendants recruited lawyers in order to legitimize their actions.  Initially, they made sure to create an agreement through the attorney who represented plaintiff 2, the main purpose of which was to pay the deceased's debt to him at the Execution Office, and at the same time another document entitled a gift agreement whose main purpose was to transfer the apartment to the defendants, a move that was hidden from the eyes of plaintiff 2 and the other brothers.
3. The will document from 2017 is also intended to guarantee the defendants the receipt of the apartment, in the event that for any reason the gift agreement is not legally accepted, all under unfair influence while taking advantage of the sad circumstances of the deceased's life.  The lawyer who drafted the will had difficulty explaining why she did not bother to check with the deceased about the fear of canceling the gift agreement.  According to them, the mention of a gift agreement in the deceased's will shows that they understood that their actions would be discovered at the end of the day and would lead to the cancellation of the agreement, and therefore they made sure to draw up a will that would leave them as owners of the deceased's assets.
4. According to them, based on the testator's "dependence tests" on the beneficiaries of his will, the gift agreement should be invalidated.  In their opinion, clause 4.4, which is included in the gift agreement, in which the deceased waives the right to defend himself by writing a warning note on the apartment as long as he is alive, raises suspicion that this is a demand initiated by the recipients of the gift themselves.
5. The plaintiffs refer to the testimony of the welfare director, who reflected the real facts of the defendant's relationship with the deceased and her brother, and painted a harsh picture of the defendant's complete separation from her father and sister who was disabled in B.A.  For many years, without a single request that can be pointed out by the defendant to the Welfare Department to inquire about the help received by the deceased and b.A.  From her testimony it appears that the defendant's interest in the deceased may and early stems from the property dispute that was discovered between him and his son, plaintiff 2.
6. Reference is also made to the transcript of the deceased's conversation with his daughter, plaintiff No.  3, in which the deceased is heard saying that the defendant never invited him to their home on holidays and Saturdays.
7. According to them, the defendants did not care about the deceased and B.A.  until May 2013, after which they acted to take care of the deceased as part of a "strategy".  The defendant knew how to take advantage of the separation that existed between the brothers, to take advantage of the deceased's difficult dispute with his son plaintiff 2, and to leverage it in such a way that the defendants allegedly discharged the deceased's financial debt to his son in order to take control of his assets and frightened the deceased that plaintiff 2 was about to take over his house and throw him into the street.1 And they promised to be the ones who would take care of her while completely compartmentalizing all the brothers.  The installation of cameras in the deceased's apartment was also intended to give the defendants full control over the deceased and his visitors.  In order to close the circle and create the deceased's complete dependence on the defendants, the defendant was "recruited" for the task of transporting the deceased for medical examinations in order to strengthen their grip on him and to cut him off from his children, since they drove and cared for him and ostensibly create an image of concern for the deceased when in fact he was living in neglect.  Thus, according to the plaintiffs' version, the defendants created complete dependence on the deceased, which amounts to the existence of unfair influence, and in light of this, not only the gift agreement, but also the will should be canceled for similar reasons.
8. The plaintiffs add that the defendant did not act transparently, and that the documents were prepared and signed without their knowledge and without their involvement, in an attempt to circumvent the agreements of the other brothers and to guarantee the defendants exclusive ownership of the apartment that had been their father's property for many years.  They note that it is inconceivable that the deceased sought to exclude four of his children and to fully register his rights in a valuable property in the name of only one daughter and son-in-law.
9. According to them, the expert opinion did not give any expression to the fact that the deceased was supposed to undergo a right kidney resection on the day the agreement was drawn up, and the expert only ruled out in medical terminology a state of acute confusion and delirium as of that date.  However, it was noted that as of the end of 2016, cognitive decline is described that fits the definition of a neurocognitive disorder such as dementia.  Therefore, the will, which was signed on January 8, 2017, with the aim of annulling any previous will and out of concern that a reason would be found that would cancel the gift agreement, was signed with the deceased's poor mental and physical functioning and a state of complete dependence on the beneficiaries of the will, who are the defendants.

The defendants' arguments

1. The defendants claim that the plaintiffs did not meet the burden of bringing evidence and the burden of contradicting factual and legal presumptions.  The plaintiffs did not prove that the deceased's free will to transfer the apartment as a gift to the defendants was denied to him.  The deceased's wills also confirmed his desire to grant the apartment to the defendants.

According to them, this was a gift transaction that was completed and ended with the registration, and the defendants changed their situation based on this gift.

1.  According to them, all the plaintiffs' court documents paint a complex picture of the relationship between them and the deceased, and therefore the deceased decided not to bequeath anything to them, and they knew this and chose to attack the gift agreement while he was not alive.
2. They further added that the very fact that the claim was filed with great delay, after about seven years since the gift agreement, and after the death of the deceased, while significantly changing the front with respect to the pleadings, in such a way that they tried to argue for the first time in their summaries that the dispute also revolved around the validity of the feces from 2017, even though their claim is for the cancellation of the gift agreement, caused them evidentiary damage that should be given weight.
3. According to them, the plaintiffs' version regarding their "surprise" at the deceased's shiva upon the discovery of the existence of a gift agreement by virtue of which he transferred the apartment to the defendants, was contradicted in their testimony.  According to them, the evidence shows that his son, plaintiff No.  2, knew for sure about the transaction, was involved in it in order to receive his debt from the father, and the rest of the plaintiffs knew about the need to cover the deceased's debt to him in real time and knew about the transaction of transferring the apartment as a gift, at least immediately after it was made.
4. According to their version of the evidence, the plaintiffs and the deceased had a strained relationship, with the son of plaintiff No.  2 conducting legal proceedings against the deceased and trying to get him out of his home, and the other sisters each dealt with her own affairs and did not assist the deceased.
5. The defendants added that during the crisis between the deceased and his son plaintiff 2, the defendant tried to help him and even approached her sisters with a proposal for an equal division of the debt that was required to be paid, and all of them would undertake to take care of the deceased and his home B.1.  When both of them continue to live in the house until their longevity, then the house will register a different appeal, all the sisters in equal parts.  However, the sisters refused this offer and were not willing to take on these obligations.
6. The defendants claimed that from the testimony of the attorney who drafted the gift agreement, the deceased and his son, plaintiff 2, appeared at his home, and asked him to draw up an agreement between the defendant and plaintiff 2, in which it covered the deceased's debt to him and a warning note in his favor on the deceased's apartment would be canceled.  In addition, a transaction will be signed in which the deceased's apartment is transferred as a gift to the defendant.  Thus, after the defendant transferred the checks and after the warning note was canceled, a gift transaction was registered in the Land Registry.
7. According to their version, plaintiff No.  2's claim that he did not understand the meaning of the agreements and did not know at all what he was signing, and that he and the deceased did not even visit the lawyer's home, they have nothing to rely on as this was contradicted in the testimony of the lawyer who even confirmed that the deceased and plaintiff No.  2 were the ones who initiated the agreements.
8. The defendants emphasize that the attorney did not know them at all beforehand, and that it is clear that in light of his murky relationship with the deceased, plaintiff 2 had a clear interest in receiving the funds that the deceased owed him.  Therefore, his claim today is that he did not know what the sums were paid for, or that he was not paid in full

When he is the one who signed the agreement and was represented, it is nothing but naivety for its own sake.

1. According to them, a pressure campaign was used by some of the plaintiffs to cancel the gift deal, as it appears from the transcription of the recordings of plaintiff 3 that she tried to influence the deceased while he was still alive in order to cancel the gift.  However, the deceased's recorded answers indicate that at no stage did he lose his ability to choose,and he knew what legal options he would have if he wanted to cancel the gift agreement.
2. In 2017, the deceased made a will in which he signed the gift, for the avoidance of doubt, and bequeathed all of his property to the defendants.
3.  According to their approach, the plaintiffs' claim that due to his medical condition, the deceased was not fit to sign the gift transaction, and that the defendants were the ones who forced him to sign the transaction was contradicted by the medical expert appointed at their request, and determined that the deceased was competent at the time of the gift.  The plaintiffs did not ask the expert questions for clarification and did not ask to question him.  Nor did they ask to submit a different opinion on their behalf.
4. According to their version, the claim that the defendant had a shaky relationship with the deceased was not proven.  Raising this claim is intended to blacken her face.  According to them, the defendant, the deceased's son-in-law, cared for him with devotion as if he were his father, accompanied him to his medical treatments, came especially from his home in ------- to help him, purchased medicines and groceries for him and took care of his daily needs.  All this, while some of the deceased's children who lived near him chose to ignore his condition and did not provide him with any assistance.  According to them, it is possible to learn about their concern and the dedicated care they gave the deceased from the clause in the gift agreement that states plaintiff No.  2's undertaking to stop harassing the deceased.
5. The defendants claim that in their summaries, the plaintiffs ignored the existing law regarding the cancellation of the gift agreement, the remedy to which they petitioned in the suit, but rather focused on the testator's "dependence tests" on the beneficiaries of his will, while the will was not at the center of the dispute and the plaintiffs were not even recognized as his heirs.
6. The defendants petition to dismiss the claim and to cancel the injunction granted in another proceeding.

According to them, in light of the defendants' conduct throughout the proceeding, including the awkwardness of the proceedings, the waste of judicial time of the parties themselves, the issuance of an injunction on false grounds, the raising of baseless claims, the denial of court documents submitted by them and even their affidavits that were not withdrawn from the court files, and the damage to the good name of the witnesses, it is requested that they be charged with real expenses, including attorney's fees plus VAT.

1. Discussion and Decision

1. The deceased transferred the apartment to the defendants in a gift agreement that ended with registration in the land books.
2. Clause 4.4 of the gift agreement states: "The giver of the gift declares that he hereby gives the proprietary rights in the apartment in complete and unconditional gift, and without any consideration, on condition that he will continue to live in the apartment and the apartment will be in his exclusive possession and use for the rest of his life.  The giver of the gift agrees that no warning note will be recorded in respect of the undertaking to continue living in the apartment until longevity."
3. As you know, a gift is a transaction that is perfected by offering and accepting, and therefore it is a contract for all intents and purposes.  In accordance with issues that were not regulated in the Gift Law, the law of contracts should be applied with regard to the manner in which the contract is concluded, its nullity and the right to cancel it (Civil Appeal 495/80 Berkowitz v.  Klimer, 36(4) 57, 60-61 (1982); Civil Appeal 3601/96 Barashi v.  Estate of the late Zalman Barashi, 52 (2) 582, 595 (1998).
4. The element of "finalization" is a main and fundamental condition for the creation of a contract, and in its absence, a binding agreement between the parties is not perfected.  The test for the existence of a conclusion is as an objective-external rule, so that the emphasis is placed on the external disclosure of the consent in a manner that is understandable to a reasonable person, and as it is learned from the totality of the circumstances of the case, including the conduct and words of the parties before and after the conclusion of the contract.  In many cases, the very signing of the contract constitutes a significant, if not decisive, indication of finality ( sections 1 and 2 of the Contracts Law).
5. The objective test is also valid where we are dealing with a gift transaction, but a higher level of proof of discretion is required, so that it is necessary to verify that the gift was given of free will and with full understanding (Barashi, pp.  601-602; Mordechai A.  Rabilo P.  Yarosh to the Laws of Contracts: The Gift Law, 1968 30-33 (2nd ed., 1996), p.  37).
6. It should be noted that the aforesaid does not diminish the rule according to which any person is held competent to enter into a contract in accordance with section 2 of the Legal Capacity Law; but only to clarify that when it comes to a gift contract, the examination of the element of finality must be more stringent.

( Civil Appeal 3354-18 Anonymous v.  Anonymous, dated March 23, 2020, published in Nevo).

1. In our case, the rights in the apartment were registered in the name of the defendants, so that this is a completed gift, and the emphasis is on the question of the validity of the gift agreement by virtue of which the transfer of rights was made.

First, it is necessary to examine whether the deceased's cognitive state enabled him to formulate a final decision in order to enter into a gift agreement.