"A cornerstone in Justice Barak's analysis of the Melamed case and in his book is that the surviving heir acted in bad faith. It is possible - and I will not set any precedents in this regard - to determine this in the third situation that was described, in which, despite a provision in the joint will prohibiting the modification of the will, the surviving heir has a will that is subordinate to the joint will" (paragraph 16 of the judgment of Justice Naor; emphases are not in the original - Y.V.).
- Thus, Justice Naor leaves only the question of whether a person who unilaterally cancelled a mutual will - in violation of a provision in the will restricting him from doing so - will be considered to be in bad faith. It therefore follows that a person who cancelled a mutual will, in the absence of such a restrictive provision, will not be considered to be in bad faith."
If so, the question of good faith arises and needs to be examined, insofar as the court finds that we are dealing with a will that restricts the surviving spouse and contrary to this limitation, he acted in bad faith, even when he took an action that could circumvent the provisions of the will, and that was its purpose.
As stated, this is not the case before us, since it was determined that we are dealing with a will that did not include a restriction on the heir to make the assets as he saw fit, and therefore it was not found that the question of good faith should be addressed. More than necessary, and as will be brought below, we further learn that the deceased even acted transparently, while revealing his intentions and wishes, without transferring the rights in a manipulative manner.
Is the provision in the mutual will a "heir instead of an heir" provision according to section 41 of the Inheritance Law or an "heir after heir" provision according to section 42 of the Inheritance Law?
- In the Zamir ruling, the court discussed the difference between the "heir after heir" provision and that of "heir instead of heir" and the implications of these arrangements on the ability of a testator to change a mutual will that was made prior to Amendment 12. Although in the Certain Rule it was determined and emphasized that the Zamir Rule applies in any case without distinction as to which of the arrangements is anchored in the will, when the reliance of one of the spouses who died first, one and the same, whatever the arrangement may be.
However, I have also found it necessary to relate to the type of arrangement in our matter.