(b) The words of the will as recorded by the judge ... They shall be called before the testator, he shall declare that this is his will, and the judge... He shall certify with his signature on the face of the will that it was read and that the testator and that the testator declared as aforesaid.
(c) If the will is written in a language that the testator does not hear, it shall be read to him in a translation into the language he hears, and the translator shall confirm this on the face of the will.
(d) Instead of reading the will or its translation before the testator, it may be read or its translation read by the testator himself...
(g) For the purposes of this section, the law of a notary is the same as that of a judge."
Section 25 of the Inheritance Law instructs that the basic elements of a will before an authority are "The will was made before an authority or submitted to the authority by the testator himself..."
- With regard to the will in question, it was not claimed that there was a defect in the basic elements of the will, but rather in the notarization of the details, and in the fact that it was recorded that the testator read the words of the will, even though she did not do so, and as stated, they are not part of the basic components. Therefore, the arguments of the opponents that these are defects that cannot be corrected according to the Sec. 25 and even if the arguments of those who object to the existence of defects are accepted, the will can be executed if the court is convinced that the will reflects the true will of the deceased.
It should be noted here that counsel for the opponents refers in his summaries to the judgment in the matter Estate File (Haifa) 51414-06-16 Anonymous v. Brother (Published in Nevo, January 28, 2021) However, contrary to the arguments of the opposing counsel in the judgment there, it was not determined that these were defects that could not be corrected by virtue of the provisions Sec. 25 According to the Inheritance Law, the opposite is true, the Honorable Justice Mirez there examined the evidence in accordance with the provisions of the Sec. 25 of the law (see paragraph 18 of the judgment) and found that it had not been proven that the will reflected the testator's free and true will. In this context, it should also be noted that in the case there, the formal defects joined the court's conclusion that the notary there corrected the date of the will retroactively, blackened the relevant serial numbers in the notary's book and for other factual circumstances that were proven there, in addition to the determination regarding the negative impression regarding the reliability and professionalism of the notary there, so that this is a case whose circumstances are significantly different from those that are the subject of the judgment in question.
- "... Therefore, the form requirements specified in section 22 of the Inheritance Law apply to a will made before a notary public in the Notaries Law and its regulations. The case law that applied these special modes of action to the notary public saw them as dynamic form requirements, procedures that could be ignored or absent and the will could be executed by virtue of section 25The Inheritance Law..." (Shochat, Defects in Wills, Appeal to the Committee - 2016, p. 105 and Ilan on the references cited there).
In our case, and in addition to the defects that occurred in the drafting of the will by virtue of the Notaries Law and its regulations, there was another defect in the will, since although in the confirmation of the making of the will it was stated that "the testator read the words of the will to me", in practice the deceased did not read the will, but it was the notary who read the will to the deceased (see the notary's testimony, p. 6, paras. 12-14 of the minutes of the hearing of October 18, 2021). Admittedly, the provisions of section 22 state that the way to make a will before an authority is, inter alia, by reading what is recorded in the will (section 22(b) of the Inheritance Law) and that reading it by the testator is an alternative way to do so (section 22(d) of the Inheritance Law), but there is no dispute that in the case at hand the approval of the making of the will as worded does not express the manner in which the will was made, according to the notary's testimony. This matter is also a defect that can be corrected by virtue of the provisions of section 25 of the Inheritance Law.