It was held that in this matter, mere suspicion is not sufficient to establish possession. Significant evidence is needed to establish a factual basis regarding the existence of a presumption. However, as to the content of the evidence, circumstantial evidence is sufficient to reach a substantial and substantial conclusion of the existence of a presumption of undue influence.
- In the judgment in the Additional Civil Hearing 1516/95 Marom v. Attorney General IsrSC 52(2) 813) brought a list, not closed, of tests to assist in deciding whether there is a presumption as to the existence of unfair influence, and as follows:
- The Dependency and Independence Test - Whether the testator was physically and intellectually independent at the relevant time, and to what extent.
- II. The Dependency and Assistance Test - Where the testator needs the help of others, the nature of the assistance given to him, the scope and degree of the testator's dependence on that assistance and on the person who gave it to him should be examined.
III. Test of Relationships with Others - This test is a subtest to the dependency and assistance test. In a situation where the testator was isolated and detached from others, this increases the mitzva's dependence on the beneficiary. The reason for the separation is irrelevant, and if he was completely detached from other people or if his ties with others were few and rare, this would strengthen the assumption that the testator was dependent on the beneficiary.
- IV. Test of the circumstances of the drafting of the will and involvement in its preparation - Even if the beneficiary's involvement in the drafting of the will does not amount to grounds for its disqualification by virtue of Article 35 The Inheritance Law may be an indication of the existence of unfair influence.
These tests do not constitute a closed list; they do not have to be all of them, and additional tests can be used according to the circumstances of the specific case in question. With regard to the application of the tests, it was determined that this should be done with great caution "with the understanding that dependence in itself does not constitute sufficient evidence of the existence of unfair influence, nor even the establishment of a presumption as to its existence. From the testator's being independent (the test of independence), it can be inferred that he is dependent on the other, but since he is dependent on the other, it cannot be concluded that he made his will for the benefit of the other out of unfair influence. It is not dependence that is the main thing, but rather the probability that dependence negates the free will of the testator. The same is true in all other tests. The testator's dependence on the assistance of the other does not necessarily negate his free will. This is also the case with regard to examining the testator's relations with others, and even in drawing conclusions from the circumstances of making the will" (Tax Appeal (Tel Aviv) 1100/05 Anonymous v. Anonymous (published in Nevo, April 6, 2009).