The Inheritance Law
- Section 8 of the Inheritance Law states as follows:
"8. (a) An agreement regarding a person's inheritance and the relinquishment of his inheritance made during that person's lifetime are void.
(b) A gift that a person gives in order to be amended to the recipient only after the death of the giver, is not valid unless it was made in a will in accordance with the provisions of this Law."
- This section is intended to fulfill the purposes of inheritance law with respect to wills, including preventing the testator from binding himself to agreements regarding his future inheritance, and to ensure the testator's freedom to change his will at any time until the day of his death (see: Tax Appeal 10807/03 Zamir v. Gamliel, IsrSC 62(1) 601, 629-630 (2007); and Civil Appeal 155/73 Sharon v. Leibov, IsrSC 28(2) 673, 676 (1974)). Thus, section 27 of the Inheritance Law also states that:
"27. (a) An undertaking to make a will, to change it, to revoke it, or not to do any of the following, does not apply.
(b) A provision of a will that negates or restricts the testator's right to change or revoke the will is void."
- This section expresses the principle of freedom of command, which states that a person may change, revoke or make a new will at any time until his last day, and that any obligation or provision that limits this right is void (see: In Tax Appeal 2035/13 Anonymous v. Confidential, para. 6 [Nevo] (August 8, 2013)).
- Thus, the words of the legislature are clear and unambiguous: an agreement that directs the transfer of the testator's rights after his death, or the granting of a gift that is intended to be given only after the death of the giver - not in the framework of a will as defined by law - is null and void. As previously ruled by this court, the use of the phrase "one hour before my death" in the framework of an agreement or undertaking to transfer the testator's rights after his death, instead of using a lawful will, does not change the said legal outcome. The practical meaning of this expression was, and still is, the granting of rights after death that is possible only in the framework of a will in accordance with the provisions of the Inheritance Law, since the time before the death of the testator is not determined in advance, but only retroactively. In this regard, the words of Justice Cheshin are appropriate:
"As the trial court also pointed out, my colleague Justice Englard - that the gift is supposed to be taken "[that] one hour before my death." "Because a man does not know when he will die..." [...] We will not know until after death when that "one hour" before death was. This means that the gift will be taken - in practice - only after death, as it were. A gift of this kind - a gift after death - exempts itself from being a "gift" and turns it into a "will." The essence changes, and with it the name changes. From a broad conceptual point of view, a "gift" was a "will", and as such, the two are concerned, in principle, with "the acquisition of an asset not in return" (as defined in section 1(a) of the Gift Law). The two are close sisters, but while a gift is between the living (inter vivos), a will is due to death (mortis causa)" (emphases added - A.S.) (See: Civil Appeal 2555/98 Rabbi Abergel v. Estate of the late Ben Yair z"l, IsrSC 35(5) 673, 688 (1999)).
- Over the years, this Court has held, more than once, that what is stated in section 8 of the Inheritance Law should be interpreted "in the manner of maximum limitation and severe strictness" in view of its limitation of freedom of contract (see: Civil Appeal 682/74 Yekutiel v. Bergman, IsrSC 29(2) 757, 762 (1975); as well as additional hearing 39/80 Berdigo v. Federline, IsrSC 35(4) 197, 214 (1981)), however, this determination does not completely empty the provisions of the law of their content.
- In our case, without going into the circumstances under which the Applicant made use of the phrase "one hour before my death", I am of the opinion that the use of this language leaves no shadow of a doubt that the intention of the parties, as appears from the letter of undertaking, was to transfer the Applicant's rights in the farm to his daughter and nephew, the Respondent, only after his death. Therefore, I cannot agree with the District Court's determination that the intention of the parties in the letter of undertaking was to give a gift during life and not a gift after death, and therefore the language of the letter of undertaking does not release the applicant from this undertaking. This undertaking was made in complete contravention of the provisions of the Inheritance Law, and amounts to a transaction in future inheritance, which, as stated in section 8(a) of the Inheritance Law, has no validity; or, at the very least, a gift that the applicant undertook to give to the respondent's daughter and nephew after his death not by way of a will, in contravention of the rule set forth in section 8(b) of the Law. In both cases, this obligation is void in essence, and the respondents are not entitled to any compensation for its breach, if it was breached.
Can the clauses of the letter of undertaking be separated?
- In clauses 6 and 7 of the letter of undertaking, it is written as follows:
"The farm will not be sold except with the joint consent of our two aforementioned children.