An examination of the text of the will, which was made on September 17, 1987, leads to the conclusion that we have before us a mutual will. This is a single will signed by the deceased and the deceased, a will that they signed together in front of two witnesses and in which they bequeathed their property to each other only. From the will we learn that the deceased made a joint decision to make a will together, in which the arrangement of one is based on the arrangement of the other. In other words, upon the death of one of them, the surviving spouse will be the sole heir.
From this I determine that the will in our case is a mutual will.
Did the will limit the surviving spouse?
- In order to decide the question of whether, in the circumstances of the case before me, the deceased was prevented from acting contrary to the mutual will, after the death of the deceased, it is necessary to examine whether it is possible to learn from the provisions of the will, the circumstances of its signature or the circumstances in general that the parties undertook not to change the will, i.e., they were limited, including a restriction on the use of the assets inherited by the surviving spouse, or whether there is room to order such a prohibition by virtue of the principle of good faith.
The Inheritance Law (as drafted before Amendment No. 12) explicitly instructs that the testator has the right to revoke or change his will at any time. As stated, in our case we are not dealing with a late will made by the deceased, in contrast to the mutual will, but rather with a gift that was granted, after the death of the deceased, while in practice the property detracted from the assets that it was expected to divide between the parties, in accordance with the will.
Section 54 of the Inheritance Law, which grants the court the authority to interpret a will, also outlines the way to do so:
“)a) A will is interpreted according to the testator's intentions as it is implied in the will, and to the extent that it is not implied by it - as it is implied by the circumstances.