Family file (K.S.) 3858-07-23 M. G. v. C. A. C. - part 3

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The Normative Framework

53. The institution of the surviving son was born as an idea for a pre-initiated solution to future family disputes regarding the status of the descendant who will receive the rights of the parents on the farm after their death, especially when there are several descendants, and since, according to case law, rights in the estate cannot be inherited wherever they are and are not part of an estate (see: Civil Appeal 566/89 Dov Stein v. Deborah Sofer et al., IsrSC 47(4) 167 and also see Family Case (TB) 34371-08-11 above and the references there [Nevo]).
54. The definition of a "continuing son" is found in section 1 of the Cooperative Societies (Companies) Regulations, 5733-1973, to the effect that "a continuing son" - only one son or one adopted child or one grandchild of a farm owner, including his spouse, who owns himself or by virtue of an irrevocable written undertaking of his parents or by virtue of an inheritance, in an agricultural farm, as an owner, as a lessee, as a sub-lessee, or as a licensee for an indefinite period or at least one year of a settling institution and the association or the association when there is no settling institution; For this purpose, 'parents' - including one of them in the event that the other has ceased to have rights in the agricultural farm or has passed away."
55. In many of the family disputes regarding the "appointment of a successor son", the clarification is conducted in two circles: the circle of the external relationship (parents and a "continuing son" versus the ILA/Jewish Agency/Cooperative Society) and the circle of intra-family relations (parents/siblings versus the "continuing son") - see in this regard Civil Appeal Authority 1662/99 Haim v. Haim, IsrSC 56(6) 215, (27/8/2002) [published in Nevo]; Family Appeal (Haifa District) 52148-10-19 Anonymous v.  Anonymous, (4/2/2020) [published in Nevo].
56. There is a reciprocal relationship between these two circles, so that the fact that the registration of a "continuing son" was not completed during the lifetime of the appointers at the Agency and the ILA may indicate a lack of discretion on the part of the parents regarding the appointment, and thus, conversely, the completion of the registration with the IAEA and the ILA may indicate a clear intention on the part of the appointing parents.
57. In the realm of intra-family legal relations, the appointment of a surrogate son under the Gift Law, first and foremost the provisions of the Gift Law, 5728-1968 (hereinafter: the "Gift Law") is also the reference prism of the case law in the vast majority of legal claims on this issue. (See in this regard 34371-08-11 A.  v.  S.A.) [Nevo].
58. A gift agreement is protected by two provisions of the law: the Gift Law, 5725 - 1968 andthe Contracts (General Part) Law, 5733 - 1973 (hereinafter: the "Gift Law" and the "Contracts Law") and see: Family Case (Jerusalem) 13500/06 R. N.Y.A.  [Published in the databases [Nevo]] (16/03/2008)).
59. Section 1(b) of the Gift Law, 5728-1968, states that "the gift may be real estate, movables, or rights." The right that the "surviving son" receives following the appointment is an irrevocable undertaking by his parents, that subject to the approval of the gift by the settling institutions, the "surviving son" will receive, after the death of both parents, the right to use the estate and its rehabilitation and will become a licensee in their place.
60. The rule is that if it is determined that the gift was given to the recipient, then the gift has ended, is completed, and therefore the parents will not be able to withdraw it and cancel it (see Family File (TB) 17271-09-09 D. v.  S.D.  [Published in [Nevo]] databases (22/05/2011)).  At the same time, this approach was softened in a Supreme Court judgment given inTax Appeal 3996/12 of November 15, 2012 (published in the databases) [Nevo], where it was held that even in cases where the gift was completed, the existence of an implied terminating clause in the waiting agreement for the appointment of a successor son should be examined.
61. It was further held that if the registration of the surviving son has not been completed, then it must be said that it is an undertaking for a gift, which is governed by section 5 of the Gift Law. According to this section, the giver may withdraw it if the return was justified, and it is the result of disgraceful behavior of the recipient of the gift towards the giver or a member of his family, or a significant deterioration in the giver's financial situation.

From the general to the individual

62. I will preface the beginning, after reviewing the entire evidentiary basis, I have reached the conclusion that the lawsuit is lawful, with regard to the declaratory remedy as opposed to the monetary one, to be accepted.
63. Even before we dive into the specific arguments of the parties and the evidence presented by them, we must dwell on the status of the parties in relation to the question of the appointment of the plaintiffs as the successor son of the deceased father, who passed away about a decade ago.
64. It seems that there is no dispute at all that the appointment of the plaintiffs as a successor son and the declaration given by the deceased on November 29, 1984 was not expressly revoked by the father. Decades passed from the appointment until the father's death, and in all these years the father did not bother to insist that the appointment be canceled.  It should be said at this time that the conduct of the parties among themselves does not raise or detract from this matter.  The gift was given by the father, and therefore the father is the only one who can request to withdraw the gift and petition for its cancellation.
65. The defendants themselves have no status in relation to the gift and the granting of the right to be a successor son to the plaintiffs. They are not the owners of the rights in the XX farm, and in any case they did not grant the plaintiffs anything in relation to this farm.  Therefore, their objection to the appointment of a successor son made by their father, and in other words, their objection to a gift that was not given by them in relation to rights that do not belong to them, places all their arguments on shaky foundations, if there is any basis for the claims.
66. Having said all this, we will refer in detail to the various arguments and documents submitted to the court file.

The Argument Regarding the Failure to Lawfully Register the Continuing Son with the ILA

67. The appointment of the plaintiffs as a successor son was made back in 1984. According to the statement of defense submitted by the Jewish Agency, the appointment was made lawfully and in accordance with the Agency's procedures at the time (paragraph 21 of the Agency's statement of defense).
68. At the time of the appointment, the Agency would not have reported to the ILA (at the time of the ILA) about the appointment of a successor son. The reports began only with the establishment of a procedure in this regard.  The ILA's Directive 55, which established the reporting procedure, was given only on February 18, 1997, almost 13 years after the appointment of the successor son.
69. In fact, the defendants do not dispute that the appointment itself was made lawfully and in accordance with the procedures that were in place at the time, as confirmed by the Jewish Agency in the statement of defense. However, according to the defendants, since the directive of Section 55 came into effect, the Agency was required to report to the ILA regarding the appointment of the "continuing son", which, as stated, had been made 13 years earlier.  Since the report was not made and the appointment was not registered with the ILA, the gift was not completed and the giver of the gift is entitled to withdraw the grant.
70. I cannot accept this argument. First, the defendants did not bring any evidence that there is an obligation to report to the ILA about any appointment of a "continuing son" that was made before the procedure came into effect.  Second, in my opinion, this is not practical at all.  The registration of the surviving son approved by the ILA ended with the Agency's approval, and the report to the ILA was made only from the moment the procedure came into effect.  No legal basis was found for the claim that the appointment of the continuing son should also be registered with the ILA in relation to appointments that were made years, and sometimes decades, before the procedure came into effect.
71. I am of the opinion that once the plaintiffs have met the burden of proof to prove that they were appointed lawfully and in accordance with all the procedures that were in force at the time of the appointment, it is not possible to accept a position that the appointment was not completed solely because of procedures that were later accepted and that it was not determined that their application was retroactive (see in this regard, family file 35322-06-11 of February 16, 2016, published in the [Nevo] databases).
72. In this context, it should also be said that the registration of the appointment with the ILA is a report for the purpose of registration and not the receipt of an application for consent. In other words, once the parents' wishes were received, the approval of the cooperative society was given and the consent of the Jewish Agency was given, then the appointment was substantially completed.  In this case, the appointment was not only substantially completed, but also formally, in accordance with all the procedures that were in force at the time.
73. In light of the above, I order that the appointment of the plaintiffs as a successor son in Estate XX has been completed and duly registered.

Agreement dated May 18, 1988 between the deceased and defendant 3

74. This agreement is the first in a series of agreements signed within the family. The agreement was signed after the appointment of the plaintiffs as a successor son, however, it was signed between the father and defendant 3 only.  This is not an agreement that deals with ownership or transfer of ownership of the estate.  The entire agreement, as explicitly recorded in section B, relates to the "right to use the land".  Nothing more.
75. Moreover, the agreement does not relate to the estate as a whole, but only to two plots of 6 and 8 dunams, and the right to use those plots was granted for 27 years, which ended on May 18, 2015. There is no dispute that no additional agreement was signed and the validity of the agreement was not extended beyond what is written in it.  It should be noted that about two months after the end of the period, the deceased father passed away on 00.00.2015.
76. The agreement did not address the fact that a successor son was appointed, but on the other hand, it certainly did not cancel this appointment, and there is no reference or hint that the father was interested in canceling the appointment.

The partnership agreement of November 30, 1993

77. An agreement between defendants 2-3 and plaintiff 1. The agreement concerned the existence of an agricultural partnership between the three farms - the farms of defendants 2-3 and farm XX, which belonged to the deceased father, who was not a signatory to the agreement.
78. The parties disagree as to the existence of the agreement and whether it even came into effect. The plaintiff is of the opinion that the agreement is valid (p.  15, s.  4), the defendants are of the opinion that the agreement is not valid at all because the plaintiff did not comply with it (p.  45, s.  28).
79. According to the agreement, the plaintiff was given an option to join the partnership as a partner with equal rights and duties. In order to exercise the option, he had to pay ILS 100,000 to the partnership's fund, when it was clarified from the agreement that part of the money, and perhaps even the lion's share, had already been paid by him.
80. Whether or not the option funds have been paid in full, or whether the agreement comes into effect or not, the agreement clearly indicates the mindset and intentions of the parties at the time.
81. Already since the second reason for the agreement, it was explicitly recorded that the plaintiff was appointed as a successor son on the deceased father's farm. Subsequently, in clause 3.2 of the agreement, it is expressly stated that "M.  is and will remain a "successor son" in the aforementioned farm number XX and this farm unit (including the father's residence) will not be part of the liquidation assets and will not be part of the father's estate, after a long life.  's status will not be harmed, and he will be the sole owner of the rights as long as he so wishes."
82. Thus, at that time, at least, there was no dispute as to the plaintiff's status as a successor son. Not only was the appointment known to the defendants, but it was also agreed upon by them.  Precisely because the plaintiff's status was clear and self-evident, the brothers found it necessary to draw up the partnership agreement between the farms specifically with M.  and not with the deceased father, who was the lawful holder of the farm, and at that time was active and aware of what was happening.
83. By virtue of the agreement, it also expressly emerges that defendants 2-3 knew very well that farm XX was not part of the father's estate. Therefore, their argument today that the provisions of the will should be fulfilled in relation to the farm, which they know is not part of the father's estate, remains unchecked.
84. The agreement was signed 9 years after the appointment and when criminal proceedings began against the plaintiff. In a certain sense, the agreement was signed due to those proceedings, and it was expected that M.  would not be able to work in the farm for an unknown period.  The agreement also noted that even up until the date of the signing of the agreement, M.  was unable to take an active part in the partnership, which means that he is an active part in the processing of the economy.
85. Thus, according to what is stated in the partnership agreement, even though M. did not work for a considerable period of time in the farm, no one thought or claimed that his right to remain a continuing son should be revoked or taken away from him.  In fact, the opposite was determined.  The agreement states that even a future absence for an unknown period will not violate this right.

Sale Agreement dated September 30, 1999

86. On September 30, 1999, defendants 2-3 and the plaintiff entered into another agreement. According to the defendants, this agreement shows that the plaintiff sold them his rights in the estate and even received payment for it.  Therefore, even if his rights as a successor son from 1984 are recognized, the rights, in everything related to the estate, were sold to the defendants in accordance with the sale agreement.
87. An examination of the agreement shows that it does not speak of the XX farm as a whole, but rather of a number of areas where orchards are planted, with a total area of 8 dunams. Thus, we are not dealing with the sale of rights to an estate XX, but rather a sale, ostensibly, of "chunks" of the estate on which orchards are planted.  Since an estate cannot be split, the agreement has no validity in any case.  In addition, there are other reasons that negate the strength of the agreement, certainly as an agreement from which it can be learned that the plaintiffs' right as a successor son has been cancelled or sold or lost.
88. The agreement is not signed by any of the parties to it. At the end of the agreement, the signature of Adv. Renee Mishol from Haifa appears in the name of the seller, and it is noted next to the signature that it was signed according to a power of attorney.  An examination of the power of attorney shows that the word "draft" is written in large and handwritten form in its title.  The lawyer herself was not summoned to testify and it was claimed that she passed away.  It should also be said that the defendants themselves, as buyers, did not sign the agreement at all.
89. In addition to the above, at the time of drafting the agreement, the deceased father was alive and he was the owner of the rights in the entire estate, as well as the eight dunams that are the subject of the agreement. Hence, the agreement, which is not signed, and which bears the names of those who do not have rights to sell and those who do not have rights to buy (as stated, it is not possible to split an estate), is an agreement that has no validity and no weight can be attributed to it.

The sale agreement dated 30.10.2002

90. This agreement, which consists of two pages, of which only the second page is signed, was drawn up between defendants 2-3 and the plaintiff. This is the third agreement in number between the defendants and M.  According to this agreement, M.  sells land totaling 26 dunams in the XXXX area.  There is no identification of the land other than the fact that it is stated that it is agricultural land in which the rights were given to M.  as a "continuing son" of the father S.G.
91. According to the agreement, the defendants will pay M. $52,000 in three installments.  The agreement also stated that father S.G.  agrees to all of the agreement and all its clauses.
92. The father S. did not sign the agreement even though his name was recorded in the place of the signatures and there was even a line next to his name for the purpose of signing, but there is no signature.
93. This agreement has not been reported to any relevant authority. It was not reported to the Tax Authority, the approval of the Cooperative Society and the Jewish Agency was not obtained, and even the ILA noted that it did not know about any agreement for the transfer of rights in relation to the XXXX economy .  This is sufficient to refute the argument that it is learned from the agreement that M.  sold his rights in the estate even before they were given to him.
94. Beyond what is required, it should be said that the right of a "continuing son" is a personal right that cannot be sold and cannot be transferred. In this sense, this is an agreement devoid of any real content.  At that time, 13 years before the death of the deceased father, M.  had no rights that he could sell and A.  and D.  had no right to buy.
95. The testimony of defendant 3 indicates that he believed that transactions of this kind could be carried out "by virtue of the fact that we are C, we are the continuing sons of my father" (p. 63, para.  12).
96. It seems that this erroneous approach encapsulates the entire perception of the brothers D. and A.  regarding the father's inheritance.  According to them, they continue the father, and therefore the fact that the plaintiffs were the ones chosen by the father to be a "continuing son" does not raise or lower them, since they are also the "continuing sons of the father".  Needless to say, this perception is fundamentally wrong and does not correspond with the provisions of the law and the tripartite agreement by virtue of which the rights in the estate were granted.
97. In addition to the above, it should be said that according to the agreement, the estate is divided in such a way that the agricultural areas are separated from the residential part, and even for this reason the agreement has no validity, and it certainly cannot be determined that by virtue of it the appointment of the successor son was revoked, or that the right of the "successor son" was sold to the defendants, as if it were the "birthright" sold to another brother in exchange for a lentil stew.

Agreement of January 15, 2004

98. This agreement was signed between the deceased father and defendants 1 and 2. The plaintiffs are not a party to the agreement and the fact that they were appointed as a "continuing son" is not mentioned at all.
99. The agreement itself relates to a portion of less than one dunam, 954 square meters, which according to the agreement is owned by the daughter Z and is marked XXX on the attached map.
100. By virtue of this agreement, the defendants wish to learn that the agreement constitutes evidence that the deceased father completely reneged on his original intention to give the plaintiffs a gift, or a conditional gift, and all the more so that he did not see him as a continuing son.
101. The law of this argument is rejection. First, we are not dealing with an inheritance, but only a small part of it.  Second, this is an agreement that contradicts the provisions of the slot agreement, which prohibits any lease for generations to someone who has not received the approval of the landlord (ILA) and the consent of the settler (the agency), in accordance with clause 20.d.  to the tripartite agreement.  Needless to say, this agreement, like all the agreements signed between the family members, was not reported to the authorities.  Not to the Tax Authority, not to the Cooperative Society, not to the Agency and not to the ILA.  Since it was not reported, in any case no approval was received for the execution of these actions, especially since their execution the estate is split in theory and practice, and even this is in contravention of the decisions of the ILA Council.

Does the father's will cancel the appointment of the successor son?

102. On November 8, 2025, the deceased father made a notarized will before the notary, Adv. Sami Drori.
103. In this will, the father ordered that parts of the estate be transferred to defendants 2-3 in equal parts, that the father's residence be transferred to the three defendants, and that the residence built by M. be transferred to him.  There is no mention in the will whatsoever that eight sons are appointed to continue to the estate, and there is no reference in it to the cancellation of the appointment or to his death.
104. The father's will was validated with the issuance of a probate order on May 10, 2016.
105. It should be said obviously: the estate is not an estate property, and for this reason alone, it is not possible to determine rights in relation to the estate by virtue of a will. This is determined in section 20.e.  to the tripartite agreement that the rights of a member of the association are legal rights that are not part of his estate.  In other words, S.  gave instructions in his will in relation to an asset that is not part of his estate and the provisions of the will do not turn an asset that is not part of the estate into an estate asset.  The Supreme Court has noted this in a large number of rulings, for example, it was ruled inTax Appeal 3872/14 [Nevo] : "In our case, as stated, the rights in the farm are not included in the estate of the deceased, whatever the interpretation of her will, and the rights therein cannot be transferred by inheritance" (published in the databases of September 8, 2014).
106. Even if the deceased father had instructed in his will to cancel the continuing son, it is doubtful whether this provision would have been valid, which contradicts the irrevocable undertaking given by the father 40 years earlier, without it ever being revoked. All the more so that there is no such provision in the father's will and the will, with regard to the instructions given in relation to the estate, is in any case not possible in view of the splitting of the estate, which is contrary to the provisions of the tripartite agreement.
107. In this context, it should be said that decades passed from the appointment of the successor son until the father's death in 2015. Throughout all these years, despite the defendant's life trajectory, which got into trouble with the law, and committed criminal offenses for which he paid long prison sentences, the father did not cancel the appointment, and in my opinion, for good reason.  The father knew that all his other children owned inheritances and therefore could not hold another inheritance.  He also certainly knew that the plaintiffs could not compensate the other siblings in accordance with the value of the estate (section 144 of the Inheritance Law), hence the only way to leave the estate in the hands of the family and pass it on to the next generation was through the appointment of the plaintiffs to a "successor son" and this appointment, as aforesaid, was never cancelled.
108. A consequence of the aforesaid is that the claim that the father's will annuls the plaintiffs' appointment of a son continues to be rejected.

The allegation of disgraceful behavior, failure to respect a father and mother, and a violation of the "Successor Son Agreement"

109. According to the defendants, the plaintiffs' conduct indicates a breach of the "successor son agreement". The surviving son is obligated to assist the father in cultivating the farm and operating the estate.  Since the plaintiffs abandoned the estate, they violated an implied condition that exists in the framework of the gift agreement, which is to honor a father and mother.
110. According to the defendants, the plaintiffs' breach of duty is severe in a manner that justifies the cancellation of the gift in its entirety.
111. This argument entails an inherent difficulty. The question of whether the plaintiffs' conduct justifies withdrawing the gift is a question that must be dealt with when the giver of the gift claims it.  As already noted above, the defendants did not give a gift, and they cannot claim on behalf of the giver of the gift, who unfortunately passed away a decade ago, allegations of disgraceful behavior, disrespect, and the like, all of which are based on a human relationship between a father and his son and his daughter-in-law.
112. The fact that the plaintiffs did not live in the estate for a very long period of time, long before the father's death, does cast a heavy shadow on the very idea of being appointed as a "continuing son". There is no doubt that the idea of appointing the surviving son was to determine continuity in relation to the family's agricultural estate, and in addition to to designating a son who could come and assist his parents in their old age, when they could no longer afford to carry out the demanding agricultural work.
113. Notwithstanding the aforesaid, this does not indicate that if the surviving son did not assist the parent, or if the inheritance was cultivated by someone else, then the appointment of the surviving son is nullified by shares. There is no doubt that the plaintiffs' intention was to come and settle in the estate, and presumably to continue to cultivate it and make a living from it.  After all, for this purpose, they built their house on the estate, while taking out a mortgage and other obligations.  Their life path changed beyond recognition as a result of the plaintiff's criminal entanglement, and at the end of the day they did not return, nor did they settle in the estate or cultivate it, not even at the end of the late father's life.  It is not impossible that if this claim had been filed by the deceased father, the result might have been different.  However, the father himself never sought to cancel the appointment of the continuing son and did not seek to withdraw the appointment.
114. Therefore, the argument that the appointment of the surviving son should be revoked as a result of a breach of the agreement due to the failure to respect the mother and father or the plaintiffs' waiver of the appointment, is rejected.

Conclusion

115. In light of the aforesaid, the claim is accepted. I order that the plaintiffs are the owners of the rights in Estate XX in XXXX and are entitled to be registered as the owners of the rights at the ILA.
116. With regard to the expenses of the proceeding, after considering the complexity of the proceeding, the manner in which the parties conducted the hearings, and the investment of the resources required in their preparation and management, I order that the defendants pay the plaintiffs, jointly and severally, legal expenses and fees in the sum of ILS 30,000, together with a lawful tax appeal. The expenses will be paid within 30 days, otherwise linkage and interest differentials will be borne.

The secretariat will present to the parties and close the case.