Family file (Nazareth) 11834-06-20 R.G. v. H.A. - part 3

A litigant who refrains from cross-examining an expert appointed by the court and who has made unequivocal findings regarding eligibility or from sending clarification questions, assumes the risk that the evidence presented by him and his arguments in his summaries will not undermine the expert's professional medical conclusions in the opinion (Estate Case (Family Jerusalem) 36368-09-16 Y.M.  v.  A.A.  (Nevo July 18, 2021), Estate Case (Family Tel Aviv-Jaffa) 21839-11-22 Anonymous v.  Anonymous et al.  (Nevo 25.11.2025), Estate Case (Safed Family) 28212-11-20 Anonymous v.  Anonymous (Nevo 21.5.2025).

1. The case law states that an expert appointed by the court serves as the "long arm" of the court, and his opinion enjoys a special status and high evidentiary weight due to the presumption of objectivity and neutrality attributed to him (Civil Appeal 680/87 HaMagen Insurance Company v.  Yosef Eliyahu, 46(4) 154 (July 20, 1992).
2. Indeed, the summaries and arguments of the plaintiffs are not sufficient to contradict the findings of the expert's opinion as to the deceased's competence to draw up a gift agreement.  -------- attorney who drafted the gift agreement testified that he had known the deceased "for a long time" and that the deceased was "very opinionated" and "sharp as a razor".  The deceased reiterated his desire to give the apartment as a gift to the plaintiffs and signed it in the wills he left behind in 2013 and 2017.  As can be seen from the testimony of Attorney ---------, who drafted the will from 2017, she did not have the "slightest doubt about the deceased's health condition." The deceased also told the social worker about his oral wish to the social worker who testified to this.  The deceased did not even act to cancel the gift agreement after the years passed from the time it was signed.
3. From all of the above, I have found to adopt the professional and in-depth opinion of a court expert, and I determine that the deceased was in a proper cognitive state such that he was fit to enter into a gift agreement at the time of his signing.
4. However, this is not the case.  According to the plaintiffs, the sequence of events that led to the signing of the gift agreement also raises a real concern that the deceased signed it without discretion and that this was not done of his own free will, but under unfair influence, taking advantage of his complex life circumstances.  According to them, the cause of unfair influence should be examined as an independent cause, in accordance with the criteria outlined in the case law.

C-2      The sequence of events leading up to the signing of the gift agreement

1. Prior to the gift agreement, two legal proceedings were conducted between the deceased and the plaintiff.
2. In 2001, plaintiff No.  2 paid the deceased's debts to the Amigur company for the purpose of purchasing the apartment in which the deceased lived until the day of his death.

On June 3, 2000, the deceased signed a will in which he bequeathed the apartment to plaintiff 2 and also appointed him to be the guardian of his disabled daughter B.1 and obligates him to take care of her after his death.  In 2005, a civil appeal was filed against the apartment in favor of plaintiff No.  2.

1. Following a dispute between the two regarding the apartment, the deceased did not return the loan amount to plaintiff 2, did not transfer the apartment in his name and did not allow him to build in the yard as agreed between them, plaintiff 2 filed a claim against the deceased in family case 21680/07 (Haifa).
2. On March 13, 2011, a settlement agreement was signed between the deceased and plaintiff No.  2, which received the force of a judgment on March 16, 2011, according to which the deceased would pay plaintiff No.  2 the sum of ILS 95,000, and in return, plaintiff No.  2 would cancel the civil appeal filed in his favor against the apartment.
3. Since the deceased did not fulfill his obligation to pay plaintiff 2 according to the agreement, plaintiff 2 commenced execution proceedings on April 17, 2013, through attorney ------- .
4. The defendant offered her sisters plaintiffs that each of them would pay the same amount out of her own pocket in order to cover the debt with plaintiff 2, and that they would all undertake to take care of the deceased and their sister B.1.  When both of them will continue to live in the house until their longevity, then the house will register a different appeal, each of the sisters in equal parts.
5. The sisters who are the plaintiffs refused this offer.  In the affidavit of the main testimony, plaintiffs 1 and 4 contradict each other.  In paragraph 10 of the affidavit, plaintiff 4 declares that the defendant proposed a joint liquidation of the debt and plaintiff 1 did not agree.

In paragraph 11 of the affidavit, plaintiff 1 declares that all the sisters agreed to the defendant's proposal.

1. Attorney -----, who represented plaintiff No.  2 in the lawsuit and in the Execution Office, drafted the gift agreement.

Attorney ------- testified that before the signing of the agreement, the deceased and plaintiff 2 appeared at his home, and asked him to draw up an agreement between the defendant and plaintiff 2, according to which it would cover the deceased's debt to plaintiff 2 and the civil appeal in his favor against the deceased's home would be canceled.  (hereinafter: the "Settlement Agreement")and at the same time, a transaction will be signed in which the deceased's apartment is transferred as a gift to the defendant (hereinafter: the "gift agreement").  Indeed, the defendant deposited with Adv. ------ in trust the check for ILS 30,000 and 72 deferred checks, and after the civil appeal was canceled, ------ attorney transferred the checks to plaintiff 2 and registered the gift transaction in the Land Registry.

1. The gift agreement states that the deceased has the right to continue to live in the home and will be in its exclusive possession and use for the rest of his life.
2. The circumstances of the signing of the gift agreement and the testimonies of the parties, and a discussion of their claims, will be discussed in the chapter "Unfair Influence".

C-3      Examining the Claim of Unfair Influence

1. The discretion of the giver of the gift may be impaired when there is a defect in his will, due to mistake, deception, coercion, oppression, and unfair influence.  The doctrine of unfair influence applies in inheritance law (section 30(a) of the Inheritance Law, 5725-1965).  Its meaning is the exploitation of a psychological advantage rooted in the trust or dependence of one party on the other, in a manner that prevents the party under influence from exercising independent judgment.
2. Although the Contracts Law does not include an explicit provision on the matter, case law and the legal literature apply the cause of unfair influence on gift contracts by analogy with the laws of wills.  This is due to the nature of a gift agreement as a one-sided contract in which something is granted without consideration, similar to a will, which justifies increased protection of the will of the giver.

(Claims after the settlement of litigation (Family Jerusalem) 18816-06-20 N.Y.  v.  Y.Y .  (August 24, 2022) and Civil Appeal (Jerusalem District) 12734-07-22 A.B.Z.  V.  A.B.Z (03.01.2023).

1. The law is that the person who claims the existence of unfair influence has the burden of proving his claim, in the sense of the one who takes out the proof from his friend.
2. In order to determine whether unfair influence existed, the court used four main auxiliary tests: (a) the dependency and independence test: whether the giver was physically and intellectually independent; (b) The dependency and assistance test: whether the relationship was based on assistance that the giver needed and whether the beneficiary was the sole helper; (c) The giver's relationship with others: whether the giver was isolated or disconnected; (d) The circumstances of the drafting of the document: the degree of the beneficiary's involvement in the drafting of the gift agreement.

(Additional Civil Hearing 1516/95 Marom v.  Attorney General, IsrSC 52 (2) 813 (hereinafter: the Marom ruling)).

1. Not every influence is "unfair." The court must be convinced that there was an element of unfairness, based on the exploitation of psychological advantage, trust or dependence, in a way that prevented the grantor from exercising independent judgment.  This is a value-normative question that is examined according to the concepts of personal and social morality.  (Civil Appeal 4902/91 Shdema Goodman v.  Yeshivat Shem Beit Midrash High for Teaching and Dayaniut, 49(2) 441 (20.07.1995) Veterans Family Case (Family Tel Aviv-Yafo) 20800-07-18 G.G.  v.  H.  Q.  (14.06.2022).
2. With regard to the first three tests, and mainly the relationship of the deceased with his children who are parties to the proceeding, I find it appropriate to refer first to the main reports of the social worker and to her testimony as a professional, objective and neutral party.
3. The plaintiffs' affidavits were accompanied by a number of social reports, which indicate that the family has been cared for and known to the social services for many years.  The deceased was described as self-sufficient in his functioning, raised and cared for his home in B.A., who suffered from severe disability and was in a nursing condition and took care of all her needs together with the foreign caregiver, he accompanied them to all the hospitalizations and treatments they needed.  He also worked with the authorities to realize her social rights.  Only in the last years of his life did the deceased have a decline in functioning, as indicated by the social worker's testimony (dated October 28, 2024, pp.  20, 10-11), as well as from Prof.  -----'s letter dated April 7, 2017, since the death of his daughter in 2015, "Signs of depression appeared, accompanied by a general deterioration in his mental state and a decrease in his ability to function independently in daily life...  As a result, the nursing care hours he receives from the National Security Council have recently been increased."
4. In the social report dated May 21, 2013, addressed to the Execution Office, it is stated that the Department is aware that there were agreements between the deceased and Plaintiff 2 beyond what was decided in court on 3/11.
5. In the social report of April 7, 2014, it was noted in the areas of intervention of the department that there were daily conversations with the defendant, the eldest daughter of the deceased, who had entered the picture in the past two months.  The social worker noted that: "Since I came to the department more than twenty years ago, in all my years of accompaniment and care for the family, the eldest daughter of Mr. B.A.- The defendant was not in contact with the department, so the information in her possession regarding our involvement and the family's accompaniment is very limited.  The defendant does not live in the community, and only in the past two months, around the transfer of the father's assets in her name, did the daughter become involved in the care of her half-sister."

81. In a letter dated February 12, 2020, he wrote: "Over the years, he was assisted by a foreign worker in caring for his daughter, but his daughter, plaintiff 3, also helped him with transportation to physiotherapy and hospitals, as well as to home care. Sometimes she prepared hot food for him and was even employed by him for a while through a manpower company.  In addition, her daughter worked for her late grandfather for several months."

1. In a letter dated March 12, 2020: "The defendants are the daughter and son-in-law of the deceased, and they have also known the Department of Social Services for many years regarding the care of the deceased and his home in B.A

From 2013 until 2019, when the deceased passed away, the defendants handled B.a.  His severely disabled daughter until her death in 2015.  Later on, the deceased was treated with great loyalty.  The treatment included visits to hospitals, nursing homes, bringing in foreign workers, shopping, personal care, housekeeping, and handling the exercise of rights and bureaucracy.  The defendants were in intensive contact with our department regarding the assistance and in providing solutions to the needs of the deceased and sharing the difficulties that arose.