Estate Case (Haifa) 20265-05-23 Estate of the deceased Anonymous v. - part 3

A:                 No, of course I spoke to him before making the will, I had no basis to suspect any incompetence, otherwise, I guess I would have asked, but I certainly don't usually ask anyone who comes to make a will for me, if there is no basis, if it's not a very old age, or some indication of some incapacity.

Q:                 Say, and,

A:                    I don't remember,"

70. The question of the deceased's cognitive state before he signs the will is a question of medical expertise, and therefore, in order to prove the claim regarding the deceased's incapacity or his inability to understand the nature of a will, it is possible to use medical testimony regarding his cognitive state, or alternatively, to be assisted by other evidence material that relates to the relevant date and to prefer it to a medical opinion. In order to prove a limitation on the testator's ability to make a will at the time of making the will, it is incumbent upon the person claiming this limitation and the testator's incapacity, when the amount of proof required for this is significant and it is not sufficient to raise mere doubts (see: Civil Appeal 279/87 Rabinovich v.  Krizzel, IsrSC 44(4), at p.  760).
71. Although there is no legal obligation to require a medical certificate before preparing a will (except in a notarized will), the testator is expected to receive a medical certificate from a medical expert in the mental field (psychologist/psychiatrist/psychogeriatrician) regarding the testator/testator's competence to write a will, especially in cases where the testator is an elderly person who suffers from cognitive and/or various medical problems (see: in tax appeal 3777/12 Anonymous v. Anonymous of July 8, 2012; Family Appeal (Jerusalem District) 13612-12-12 Darwish v.  Darwish of July 15, 2013; Estate Case (Nazareth Family) M.  v.  G.A.  As of August 31, 2016; Adv. Benny Don-Yehia, Theory of Inheritance Law, Nevo Publishing, 2024, pp.  465-467 and the references there).
72. A testator's knowledge of the nature of a will requires not only examining the testator's awareness, but also his understanding of what will be done with his property after his death, whether he interpreted with a clear mind the reality surrounding him, whether he understood that he was signing a will at the time of drafting it, whether he understood that he was giving his property and to whom he was giving, whether he knew the extent of his property and whether he was aware of the expectations of those to whom he was benefiting as well as those whom he excluded from his will.
73. The determining date for examining a person's fitness to execute is at the date of signing the will, and therefore the validity of the will is relevant only to the period in which the deceased knew how to discern its nature, sothat if the court finds that the court was lucid on the day the will was made, it must determine that the testator understood the nature of the will at the time he made it (see: Estate Case (Family Tel Aviv) 21839-11-22 Anonymous v. Anonymous et al .  of November 25, 2025 and the references there).
74. Therefore, although it would have been appropriate for Adv. Ohana to demand that the deceased father provide her with a medical opinion prior to making the will stating that he was medically and cognitively competent to make a will, the medical documentation that was presented to the court shows that until 2018 the deceased's cognitive state was excellent (a score of 29/30 on the MMSE test in 2018). and that the visual impairment from which he suffered in his left eye did not prevent him from reading the contents of the will he signed (see: medical documentation dated March 14, 2013, November 2, 2014, October 19, 2020 and March 29, 2018 on pages 12-14, 39-44 and 51-52 of the appendices to the plaintiffs' affidavit; plaintiff 1's testimony on page 23, lines 22-24 of the transcript of November 17, 2025; plaintiff 2's testimony on page 109, line 38 - page 11, line 37 of the transcript of November 17, 2025).
75. In light of the deceased's health and cognitive condition at the time of drafting the will, combined with the explanations he received from the testator, Adv. Ohana, indicate that the deceased fully understood the nature of the will he signed and that there was no health impediment to the drafting of the testimony.

The significance of the absence of Adv. Ohana's signature on the will :

76. Ohana noted in her testimony in court that the fact that she did not sign the will with her signature but only with a stamp constitutes only a technical failure, and that there is no dispute that she made the will (see: page 8, line 22 - page 9, line 9 of the transcript), while the plaintiffs claim in their summaries that this is a material defect that goes to the root of the proceeding, because according to the provision of section 25(b)(2) of the Inheritance Law, It is not possible to execute a will without the signature of the two witnesses to its probate (sections 69-71 of the summaries).
77. In accordance with the provision of section 25 of the Inheritance Law, the absence of the deceased's signature constitutes at most a defect in the process that can be corrected at the discretion of the court, and with regard to the signature of two witnesses of the will, especially since according to the provision of section 25(b)(2) of the Inheritance Law, it is only required that the will be drawn up in front of two witnesses when their signatures do not constitute a fundamental component of the will as stated in the provision of section 20 of the Inheritance Law (see: Estate File (Family Tel Aviv-Yafo) 5643-04-22 A v.  A.  Q of October 19, 2023).
78. Witnesses are not required to read the contents of the will to the testator, but rather to observe the act of signing and confirm in writing on the surface of the will that the testator did indeed declare and sign it (see: Civil Appeal 142/80 Leah Mirsky v. Menachem Mirsky and Lily Harari, PD 35(2), 155; Estate Case (Family Tel Aviv) 6310-09-20 L.  v.  A.S.L .  dated November 18, 2024).
79. In our case, there is no dispute that Adv. Ohana drafted the will (see: page 1, section 2 and on page 4, section 42 of the objection request), and that another probate witness (Adv. Doreen Suliman) signed the will by means of a stamp and in her handwriting.
80. Therefore, as long as the basic elements of the will were met, and as long as the court had no doubt that it reflected the free and true will of the testator, and that the testator signed the will in front of them and understood, in accordance with the provision of section 25 of the Inheritance Law, there is no impediment in our case to order the correction of the defect of the non-signature of the hand on the seal of Adv. Ohana (see: Estate File (Nazareth Family) 5881-12-18 S.  v.  A.  Q of April 3, 2024), and there is no reason to determine that the will is formally defective.

Should Adv. Ohana have examined with the deceased father the reasonableness of the instruction regarding the management of the garages?

81. The plaintiffs note in their summaries that Adv. Ohana did not act as a reasonable attorney in that she did not examine with the deceased the reason why he instructed in the will to transfer the management of the garages to the defendant, even though plaintiff 1 managed the garage complex from 1992 onwards and later handled the rental of the buildings to third parties (see: paragraphs 76-77 of the summaries), while the drafter of the will noted in her testimony that it was not her job to do so. and that the testator must accept the testator's will as it is (see: testimony of Adv. Ohana on page 5, line 14 - page 6, line 5 of the transcript).
82. As a rule, arguments regarding the unreasonableness of a will undermine the principle of "respecting the will of the testator" and the principle of "freedom to command", and it is not the role of the court to examine the validity of a will or to morally judge the testator and to subject its judgment to the extent that the testator chose to bequeath his property in one way or another, but rather to examine whether the will reflects and expresses the true will of the testator. And whether his will was free and complete when he was free from the pressures and influences of one or the other, except in cases where the testator was declared invalid or was made when the testator did not know how to discern the nature of a will in accordance with the provision of section 26 of the Inheritance Law (see: Estate Case (Family Tel Aviv-Jaffa) 29215-02-18   M.  v.  K.  9 of August 18, 2019; Aharon Barak, The Will (2001), Nevo Publishing, pp.  58-62).
83. A LAWYER WHO DRAFTS A WILL IS INDEED AN OFFICER OF THE COURT, BUT IT IS NOT HIS ROLE TO SERVE AS THE "LONG HAND" OF THE COURT OR OF THE REGISTRAR OF INHERITANCE AFFAIRS IN ORDER TO EXAMINE THE MOTIVES OF THE TESTATOR, WHETHER HE BENEFITS ONE OR ANOTHER BENEFICIARY, OR ALTERNATIVELY, IF HE DEEMS IT APPROPRIATE TO EXCLUDE ONE POTENTIAL BENEFICIARY OR ANOTHER.
84. I will note that although it is appropriate to specify in the framework of a will the reason for the benefit given to a specific beneficiary, as was done in this case, or alternatively the reason for the exclusion of a potential beneficiary from the will, the testator is required to clarify before making the will whether the testator has been declared legally incompetent, or did not know how to discern the nature of a will, and to implement the testator's will by drafting appropriate provisions that reflect his will, after he has carried out the necessary preliminary checks in the circumstances of the uniqueness of the will (status company, legal status of the real estate assets, family status of the testator, tax considerations, etc.).
85. In our case, although the draftsman of the will should have addressed the legal status of the deceased's assets in a much more precise manner, it was still not the role of Adv. Ohana to investigate the deceased's considerations regarding his demand to bequeath the management of the garages to the defendant, and therefore the plaintiffs' arguments in this matter should not be accepted.

Did the defendant exert unfair influence on the deceased father?

86. The plaintiffs claim in their summaries that the defendant's actions indicate that the latter unfairly influenced her deceased parents to make a will, the provisions of which benefit her, inter alia, by drafting the two powers of attorney in respect of the deceased mother, which Adv. Ohana made close to the date of drafting the will, and all this without Adv. Ohana being presented with medical documentation indicating that the mother was competent to sign the power of attorney.
87. The plaintiffs emphasize in their summaries that from the testimonies and evidence presented to the court, it is clear that the defendant abused the mother's severe cognitive state, as well as the late father's advanced age and problematic health in 2014, by working with them and for them for wages, and by not working for her livelihood for many years.
88. According to them, the wording of the will and the external circumstances thereof indicate that the defendant forced the deceased parents in a sophisticated and systematic manner to serve as the caretaker of the deceased mother's payment, and that she made use of the deceased parents' funds without their knowledge, and in addition, she also forced the deceased father to make a will in her favor that grants her a much larger share of the estate vis-à-vis them, all while concealing these facts from their knowledge for many years.
89. On the other hand, the defendant claims in her affidavit and summaries that the will was made at the initiative of the deceased father and without any influence on her part, due to her problematic family and financial situation, and as an appreciation for the dedicated care given to the deceased mother and even to her (paragraphs 3-9, 35-41 of the affidavit; page 4, paragraph 5 of the defendant's summaries).
90. The decision on the question of the existence of unfair influence, whether the burden of proving it is on the person who objects to the execution of the will or whether the burden has shifted to the shoulders of the applicant for the execution of the will, is examined in accordance with the totality of the circumstances, and especially the existence of a comprehensive and fundamental dependence of the testator on the beneficiary, the extent of the testator's dependence on the beneficiary, the age and state of the testator's physical and mental health, as well as the other circumstances that surround the drafting of the will (see: Civil Appeal 4902/91 Goodman v. Yeshivat Shem Beit Midrash High School for Teaching and Dayanut in Jerusalem, Piskei Din 49 (2) 441, 450; In Tax Appeal 4459/14 Anonymous v.  Anonymous of May 6, 2015).
91. ALTHOUGH THERE IS NO DISPUTE THAT AT THE TIME THE WILL WAS DRAFTED THE FATHER WAS INDEPENDENT FROM A HEALTH AND COGNITIVE POINT OF VIEW (SEE: THE TESTIMONY OF PLAINTIFF 1 ON PAGE 24, lines 22-25 OF THE MINUTES OF 28.4.2025), FROM THE MEDICAL DOCUMENTATION IN THE GUARDIANSHIP FILE AS WELL AS FROM THE TESTIMONIES OF THE PARTIES IT APPEARS THAT DURING 2013 THE DECEASED MOTHER BEGAN TO SUFFER FROM VARIOUS HEALTH PROBLEMS, MAINLY ANXIETY AND DEPRESSION DISORDER WHICH WAS DIAGNOSED ON 1.1.2013 (ANXIETY AND DEPRESSION), WHILE DURING 2014 THERE WAS A SUSPICION OF DEMENTIA MIXED WITH ALZHEIMER'S, WHICH WAS DIAGNOSED ON 1.5.2014 (DEMENTIA IN ALZHEIMER'S DSEASE ATYPICAL OR MIXED TYPE) AND THAT THE RESULTS OF THE MMSE TEST THAT WAS PERFORMED FOR HER IN 2014 SET A SCORE OF 15/30.
92. In addition, the medical records indicate that at the beginning of 2023, shortly after the father's death, there was a significant deterioration in the mother's health condition, with an expert examination in the field of geriatrics from 2023 revealing that at that time the deceased mother was not aware of her condition, was not fit to sign legal documents and needed a guardian (see: the defendant's testimony on page 24, lines 33-36; paragraph 39 of plaintiff's affidavit 1; plaintiff's testimony 2; paragraph 36 of plaintiff's affidavit 2; plaintiff's testimony 2, page 103, lines 27-29 of the transcript Dated November 17, 2025; Medical documentation that was attached to the guardianship file (27673-01-23 dated April 16, 2023).
93. The evidentiary basis indicates that the defendant, who lived in her parents' apartment since 1993, used to help her parents because she did not work for her livelihood and relied on their financial support for her (see: the defendant's testimony on page 29, lines 10-13; paragraphs 5-9 of the defendant's affidavit).
94. It also emerges from the evidence and testimonies that were brought before the court that shortly after the mother was diagnosed in 2014 as apparently suffering from mixed dementia, she acted without her brother's knowledge (see: the testimony of the plaintiff 1 on page 8, lines 14-39; the testimony of the plaintiff 2, lines 14-25 of the transcript of April 28, 2025) to prepare three different legal documents that would ensure her de facto control of all the legal affairs of the deceased mother. and also by securing her financial future, by exploiting her parents' dependence on her as the mother's caregiver in order to exert very heavy emotional pressure on the father to draw up a will that discriminates favorably against her brother (the mother's notarized power of attorney that was given in her favor in the legal affairs of the deceased mother; the father's will in her favor; the general power of attorney given to the father in the mother's legal and financial affairs).
95. The defendant did note in her testimony in court that as of 2014, the deceased mother's health and cognitive condition was excellent, and that she flew abroad with her family members and even participated in card games for many years after the 2014 diagnosis (see: the defendant's testimony on page 27, lines 6-7; page 29, lines 1-5 of the transcript of November 17, 2025; the testimony of plaintiff 1 on page 26, lines 12-36 of the transcript of April 28, 2025).
96. The problem is that the testimonies of the defendant and the drafter of the will show that the notarized power of attorney was not at all legally appropriate because Adv. Ohana did not demand to present her with a medical certificate stating that the deceased was not legally incompetent at the time (see: the defendant's request dated January 11, 2023 to appoint a guardian for the mother in a guardianship case 27673-01-23; the defendant's testimony on page 25, lines 5-8; the testimony of Adv. Ohana on page 10, line 27 - page 12, line 6 of the transcript; Yona De-Levy, Notary Law and Their History (Third Edition), Israel Bar Association Press, 2016, pp. 95-102).
97. In doing so, and even by conditioning the treatment on the payment of retroactive wages to be paid from the estate of the deceased father, which on the face of it constitutes a void agreement in accordance with the provision of section 8(a) of the Inheritance Law, the defendant has in fact created a "Gordian knot" between the deceased mother's deteriorating cognitive state and the deceased father's absolute dependence on her, mainly due to his absolute refusal to hire the services of a caregiver for the deceased mother. Combined with his compassion for her due to the problems of her family, financial and mental situation.
98. The "Gordian knot" was expressed mainly in the fact that the defendant acted to influence the deceased father to draw up a will in her favor, the provisions of which clearly discriminate against her over her brother, and which would ensure her economic future, mainly by inheriting all of his rights in the apartment, as well as all the financial rights and profits renting the garages despite her complete lack of experience in this matter, as is clearly evident from the language of the will and the testator's intentions. In his will, he detailed the circumstances for which he saw fit to discriminate against the defendant over the plaintiffs in terms of the scope of the property that would be granted to her by virtue of the will (see: paragraphs 5-7 of the defendant's affidavit; the defendant's testimony on page 28, line 14 - page 29, line 39 of the transcript of November 17, 2025; the testimony of plaintiff 1 on page 25, lines 8-30; on page 37, line 21 - page 39, line 22; on page 43, lines 8-18; on page 46, line 29, page 48, line 25; page 50, lines 19-24; page 55, line 37; Page 56, line 15 of the minutes of April 28, 2025; Plaintiff 2's testimony on page 58, lines 14-30; On page 68, line 27 - page 69, line 39; Page 69, lines 16-27; Page 82 line 19 - page 83 line 16 ; Page 87 line 34 - page 88 line 36 ; Page 95, lines 15-31; Page 96 line 33 - page 97 line 3 ; Page 97, lines 20-33; Page 98, lines 13-15; Page 107 line 1 - page 108 line 7 ; Page 108 line 31 - page 109 line 2; Page 115, line 32 - page 116, line 8; Page 118, lines 12-19 of the minutes of April 28, 2025).
99. In view of all the reasons detailed above, the testator's opinion and also the circumstances of the drafting of the will (see also: Civil Appeal 1212/91 LBI Foundation v. Felicia Binstock, IsrSC 48(3), 705) I am persuaded that unfair influence on the part of the defendant has been proven, and therefore I accept the plaintiffs' objection and reject the defendant's request to execute the will of the deceased father.  In practice, it can be seen that both parents were instruments in the hands of the defendant, who took care of their property, lived in their home, received a salary for their care, received many financial benefits while they were alive, gave up employment for a very young age, and took part (even if not materially) in drafting a will that discriminated against her two brothers, and even isolated the deceased from the rest of the family (and this was even testified that the deceased did not attend the events of his grandchildren).
100. Having reached the conclusion that the will was drawn up in the circumstances of the case when it was tainted by unfair influence, I order that the will is void. The distribution of the estate of the deceased father will be carried out according to the law (in the absence of any other will) among the three children of the deceased in the same format as the distribution of the estate in the matter of the deceased mother.

Conclusion :

101. The defendant's application to execute the deceased's will from 2014 (estate file file 20265-05-23) is denied.
102. The plaintiffs' objection to the execution of the deceased's will from 2014 (Estate Case 20302-05-23) is accepted.
103. Attorney for the plaintiffs will produce a structured inheritance order for the court's signature within a week from today, and then submit it to the Registrar of Inheritance Affairs.
104. Since the defendant is not represented by an attorney, the defendant will bear expenses at a reduced rate - attorney's fees at the rate of ILS 20,000 together with a tax appeal in accordance with the law.
105. The temporary estate administrator will submit a supplementary report, including a request regarding his fees as a temporary estate administrator, within 20 days from today, detailing his activities, the scope of the estate, and the requested fee.

An internal reminder accordingly.