Estate Case (Nazareth) 19103-02-20 Anonymous vs. Anonymous - part 5

"In a request to execute an oral will, strong evidence is required.  The reasons for this rule are understandable, since it is necessary to ensure that indeed those things attributed to the deceased as the words of his will were indeed said by him, since he passed away and there is no one who can deny or explain his words and deny the witnesses' version, and in this situation the possibility arises for unreasonable people to bring false testimonies in the hope that they will not be denied for this reason.

(Civil Appeal 138/64 Feldman (Schwartz) v.  Tripman (2) at p.  420 and Civil Appeal 9200/99 Yehudit Hanuka v.  Attorney General, IsrSC 56 (3) 801, p.  807).

1. The court must examine an oral will very carefully and be convinced beyond any doubt that it is a real will.

"I would like to emphasize that the court's approach should usually be the assumption that an oral will should not be executed.  Even if there is no flaw in the wording of the speech that constitutes the making of the will, the aforementioned assumption must be adopted, unless the circumstances surrounding the making of such a will are such that they are undoubtedly convincing in any way that the matter is indeed in a real will, that is, with the absolute intention that the speech will act as a will and that there is also no plausible reason for the absence of a written will."

(Civil Appeal 99/63 Peleg et al.  v.  Family Appellant, IsrSC 17 1122 of June 4, 1963).

1. As to the condition of the deceased at the time of making the will, it is required that the deceased be "lying down" or "one who sees himself, in circumstances justifying it, in the face of death".

It is sufficient for the mitzva to be in one of two situations.  However, this is a fundamental component of the will that cannot be cured by virtue of section 25 of the law.

1. The concept of "lying down from evil" was not defined in the law, and it was absorbed from Jewish law.  The Rambam's definition of the concept of lying down from evil is "a sick person whose whole body is exhausted and his strength is so weak as to the sickness that he cannot walk on his leg in the market, and he falls on the bed - he is called lying down from evil." This definition was adopted in case law (Civil Appeal 252/70 Rosenthal v.  Tomshevsky, IsrSC 25 (1) 448.  and S.  Shochat, Inheritance and Estate Law, Seventh Edition, p.  95).
2. The interpretation given by the case law to the concept of "lying down from evil" is a narrow interpretation that distinguishes between a person who is sick, even with a serious illness - who is able to walk and function, and when necessary - to make a written will, whether by handwriting or by signing a will in the presence of two witnesses, and a person who is lying on his deathbed, with an illness from which he can no longer recover, is not functioning, and is unable to handle his affairs, including drafting a written will (Shaul Shochat, Defects in Wills, Third Edition, Appeal to the Committee - 2016, p.  123 and Ez.  (Be'er Sheva) 39062-10-17 published in Nevo on October 14, 2018).
3. In order to meet this requirement, an authoritative medical testimony is required, and it should not be concluded solely on the basis of the proximity of the time between the date of making the will and the date of death that this is indeed a situation of "lying down" (S.  Shohat, Inheritance and Estate Law, Seventh Edition, p.  123).
4.  As for the alternative situation, "one who sees himself, under circumstances that justify it, facing death," the existence of two cumulative elements, objective and subjective, is required.  An objective test is whether a person is reasonable in the circumstances in which the testator finds himself, would he feel and feel subjectively that he is facing death, and a subjective test is the testator's feeling that he is facing death.
5. Beyond the requirements listed in section 23 of the Inheritance Law, it was determined that an additional requirement must be fulfilled, which is to prove that the testator had discretion in two respects: (1) the testator's statement was intended to serve as a will, and (2) the testator had discretion as to the content of the will (S.  Shohat, Defects in Wills, Third Edition, Appeal to the Committee, 2016, p.  117).

1. Was the deceased in a state of "one who sees himself in the face of death?""

and the circumstances of the recitation of the commandments

1. At the time of the late will on June 6, 2019, the deceased was ill and according to the objector's statement, she had even suffered from vomiting, abdominal pain and chills for several days earlier, and had been staying at the home of objector No.  2.
2. The objectors stated that the deceased did not function for several months before her death (paragraph 6 of their affidavit) and was very ill (paragraph 14), but objector 2 testified that she did not take her for treatment because the deceased "did not believe in medical treatment and did not want to go to any doctor in her life" (p.  19, 28).
3. She also testified that the deceased on the day of the will was not in a good condition at all, she was shaking, and she called P.  to be with her and prepare food for her because she could not take time off from her work (pp.  19, 33-35).
4. P.  testified that in the morning the rest was fine, and afterwards she did not feel well and had a fever (p.  11, s.  28).
5. Objector 1 testified that she arrived at the house at 12:30 P.M.  and found the deceased alone, unconscious and all yellow (pp.  14, 6-7).  She took her temperature and was observed to have a temperature of 38 degrees Celsius (paragraph 17 of the affidavit).

But she did not know how an ambulance was called to pick up the deceased to the hospital until 8:01 p.m., about seven and a half hours later (pp.  14-15 of the transcript).

1. The expert testified that at the time of the mitzvah's remarks, she did not necessarily pose a threat to her life, since it "could also have been an inflammatory virus of the intestinal tract" (pp.  30, 10-11), but later testified that the deceased was not a healthy woman and also suffered from heart failure (pp.  31, 22-23).  The notary public and P.  also testified that they did not hear the deceased say that she was going to die (pp.  8, 19-20 and p.  13, 5).
2. However, a "person who is lying down from evil" is not obligated to say, in explicit terms, that he is commanded because of the fear of death, and his intention is to command what will be done with his assets after his death.  It is sufficient that the intention as aforesaid is implied by his words or by the circumstances surrounding his statement.
3. In our case, we will learn that in the subjective aspect of the deceased there was a feeling that she was facing death due to a sudden deterioration in her condition, as is evident from the testimonies of the objectors, and that it arises from the manner in which she expressed herself before the notary and her daughter P.
4. In a handwritten memorandum drawn up by the notary a few days after the deceased's death (M/1), he stated that he had asked the deceased why she had asked him to come to her, and she replied that she wanted to change the previous will that she had made with him so that her conscience would be clear towards the widow of her son who raised her granddaughters alone, and therefore she wanted to bequeath to them and the widow half of the plot.

50. In a notice of an oral will prepared by the notary public on September 14, 2019 and approved with P.'s signature and submitted to the Inheritance Registrar as a memorandum of understanding, it was added that the deceased said: "A man is going to meet his master" and that she wants her conscience to be at ease on the part of her son's widow.... Since she worked hard to raise and educate her daughters, she is therefore a mitzvah...  that the plot of land...  that she had commanded in her previous will...  Half ...  to her son's wife and her two daughters in equal parts between the three..."

1. The notary was asked if he was aware that shortly after he said goodbye to the deceased, her daughter found her unconscious and replied:

"I knew after she passed away, so when we did it, I understood why in this conversation she said the words, 'A man stands before his God at the time of death,' I didn't write it because I didn't know the importance of those words, until later when I submitted the memoir to the registrar...  I remembered later.  The matter was still fresh, I remembered the words, "A man stands before his God at the time of death," perhaps it was a sign of something in her" (p.  6, 1-6).