Estate Case (Nazareth) 64800-10-20 G.S. v. 1 Y.A. - part 2

The defendants' claims:

9. The arguments raised by the defendants in their opposition to the execution of the deceased's will are: The deceased, after the death of her husband, developed an absolute dependence on the plaintiff, which was expressed in the fact that the plaintiff took total control of her entire schedule before the astonished and helpless eyes of the deceased's children, as evidence, the objectors attached a video clip in which the deceased is expressed in the Iraqi Arabic language. According to the opponents, the plaintiff always screamed at the deceased and was endlessly angry at the deceased, and it was clear to them that their deceased mother was afraid of the plaintiff.
10. The opponents claim that the deceased used to tell them, at times when she expressed herself, her frustration with the plaintiff and said that the plaintiff held the deceased's credit card, withdrew money from her account, withdrew all the pension funds and used them for her personal needs, and that the plaintiff did not take care of her and did not provide her with the minimum needs, especially food and the refrigerator was always empty.
11. The opponents claim that the plaintiff did not pay the apartment's current bills and that debts remained, and that they would have received inquiries from various parties and even received their reports that the deceased would have been walking around alone without any supervision.
12. One of the children of the deceased, Mr. A.   claims that in one case he saw the deceased in a wheelchair and then he asked the plaintiff why the deceased was on the balcony in the heat and then the plaintiff told him that she was not willing to take care of her and asked to be taken to a nursing home, and then he turned to the other brothers and informed them of what the plaintiff had told him.
13. The opponents claim that they accompanied their mother to her home and that the subject of the will did not come up at all during the period of mourning, and that every time the plaintiff was asked about this matter, she chose to fill her mouth with water and did not answer whether there was a will for her deceased mother. According to them, the plaintiff concealed the existence of the will and that they only learned of it shortly after it was submitted to the Registrar.  The opponents claim that the plaintiff carried out the plot only after the death of their father.
14. The opponents claim that unfair influence was exerted on the deceased, and therefore the will should be revoked, in accordance with the provisions of section 30(a) of the Inheritance Law. The opponents claim that the deceased was completely dependent on the plaintiff, who took care to isolate her.  According to them, the plaintiff took care of her in a failed manner and pressured her to make the will, and that the plaintiff had a part and involvement in the making of the will.  The defendants further claim that the will should be invalidated due to an error, since the deceased's intention was to divide all of her property into equal parts among all of her sons.
15. In addition, the main argument of the opponents is that the deceased's command of the Hebrew language was very minimal and she did not know Hebrew at the level of understanding of a person who understands the essence of the will, and therefore she could not understand the content of the The opponents claim that the deceased did not know the Hebrew language except for basic words, and that because of the language difficulties she was even forced to work as a dishwasher in a hospital in order not to meet people in person.

The plaintiff's arguments:

16. At the basis of the plaintiff's arguments, she notes that the deceased's will fully and unequivocally expressed the deceased's will and that it should not be deviated from. According to her, the opponents did not meet the burden of proof imposed on them regarding the deceased's claim of incomprehension of the Hebrew language, and that she did not understand what she was signing.  The plaintiff claims that the deceased understood the contents of the will and signed it of her own free will without any influence.
17. The plaintiff relies on the testimony of Attorney P. As for her claim, he provided specific details about the status of the signing of the will, as well as in relation to the deceased and the circumstances in which it was made, from the date on which the meeting with the deceased was coordinated until she signed it.  The plaintiff also relies on the testimony of the secretary, who witnessed the signing of the will.
18. The plaintiff claims that the testimony of Adv. P. And the secretary strengthens her claim that the deceased did indeed speak Hebrew and understood the contents of the will, after it was read to her by Attorney P.  The plaintiff claims that reading the will does not require literacy of the Hebrew language, but only an understanding of the language.
19. With regard to the unfair influence on the deceased, the plaintiff argues that the deceased had no dependence on her. According to her, the deceased was independent-minded, managed her own affairs and was not dependent on anyone.  According to her, at the time of the drafting of the will, the deceased was competent, she was present with Adv. P.  herself and she was the one who asked to make her will.
20. According to her, the entire burden of proof, persuasion and evidence is on the opponents of the execution of the will - the defendants here. According to the plaintiff, this is a will that does not suffer from a defect in its form and that it is presumed to be valid, and the opponents of its existence have the evidence, and there is also no place or reason to order the reversal of the burden of proof, as the opponents tried to claim.
21. The plaintiff claims that there is no basis for the claims against the will. As for the claim regarding the deceased's lack of command of the Hebrew language, this is a ridiculous claim that is intended only to mislead the court.  According to the plaintiff, the deceased was fluent in the Hebrew language, even if the deceased had difficulty expressing certain words in the Hebrew language.  As for the opponents' claim that the deceased's inability to read a will in Hebrew constitutes a fundamental flaw, in practice the will was read and explained to the deceased.

Outline of Decision:

22. The starting point in claims such as this is the principle of respecting the will of the deceased. The assumption is that a will expresses the true and full will of the deceased to be made with his assets after his death, and the manner in which his estate will be divided after his death.  The will reflects his autonomy as an individual and his constitutional right to property.  Respecting the will of the deceased to instruct what will be done with his property is part of his human dignity (see: Additional Civil Hearing 7818/00 Yosef Aharon v.  Amnon Aharoni, 59(6) 653 (2005) and in Tax Appeal 4990/12 Z.  v.  H.Z.  (Published in Nevo, December 13, 2012)).
23. As a result, when the court comes to examine a will, it must respect the will of the deceased and refrain as much as possible from infringing on the freedom of the will. As a rule, the court will rarely revoke or change a will, and the applicant must bear a very heavy burden in order to prove his arguments (see: Civil Appeal 724/87 Varda Kalfa (Gold) v.  Tamar Gold, 48(1) 22 (1993) and in Tax Appeal 11116/08 Anonymous v.  Anonymous (published in Nevo, July 5, 2012)).
24. As stated, we are commanded to respect the will of the deceased, but it is no less important to revoke a will when there is a material defect in the testator's judicial capacity, or when it is proven that the will was not made out of free and true will (see: Civil Appeal 5185/96 Attorney General v.  Marom, 49(1) 318 (1995) (hereinafter: "The Marom Case").

Defects in the Will and the Issue of the Burden of Proof:

25. Section 20 of the Inheritance Law, 5725-1965 states: "A will in witnesses shall be in writing, shall be indicated on the date and signed by the testator's hand in front of two witnesses after he has declared to them that this is his will; The witnesses shall attest at the same time with their signature on the face of the will that the testator declared and signed as aforesaid."
26. Regarding a will in the presence of witnesses , section 25(b)(2) of the Inheritance Law establishes three basic components: the existence of a testator, a written testator and two witnesses.
27. In general, the burden of persuasion rests with the party opposing the execution of the will, to the extent that there are no formal defects within the framework (see: Civil Appeal 2098/97 Buskila v. Buskila et al., 55(3) 837 (2001) andCivil Appeal 130/77 Ozeri v.  Ozeri, IsrSC 33(2) 346 (1979)).
28. In the absence of a formal defect in the will, the burden remains and is placed on the objector even where the set of circumstances indicates the existence of a fundamental and comprehensive dependence of the testator on the beneficiary. The set of circumstances, as stated, is capable of shifting the burden of bringing the evidence to the shoulders of the applicant, but not the burden of persuasion (see: The Marom and Estate Case (Tel Aviv) 2820/00 Estate of the late Reiser v.  Reiser (published in Nevo, September 18, 2003)).

Involvement in the drafting of the will, unfair influence:

29. The person who opposes the execution of the will who claims unfair influence has the burden of proving that the will does not reflect the true will of the testator and that the will was made under that prohibited influence.
30. The provisions of section 30(a) of the Inheritance Law provide:

"A provision of a will made due to rape, threat, unfair influence, subterfuge or fraud is void"

31. Section 35 of the Inheritance Law states, as follows:

"The provisions of a will, other than an oral will, which entitles the person who drafted it or witnessed its making or otherwise took part in its drafting, and the provisions of the will that entitle the spouse of one of the following are void."

32. The provisions of section 35 of the Inheritance Law are aimed at three alternatives, one of which can be determined that there is involvement in the drafting of the will: the person who drafted it, the person who witnessed its execution, and the person who otherwise took part in its drafting.
33. The phrase "took part in the drafting of the will" is a flexible expression that fills in content according to the circumstances of the case.  The test of whether or not a certain person took part in the drafting of a will is, ultimately, a test of common sense, and the degree and severity of involvement must be examined.  The greater the involvement, the more the court will tend to view it as invalidating the will.  This is not the case, when it comes to helping and supporting the deceased, for the purpose of submitting his will in writing his will (see: Civil Appeal 5869/03 Hermon v.  Golov, 59(3) 1 (2004)).
34. It was held that unfair influence should not be seen in preliminary conversations or on behalf of the testator for the purpose of drafting a will (see: Civil Appeal 6496/98 Butou v. Buto, 55 (1) (2000)), not even when the beneficiary brought the deceased to the law firm and even spoke with the lawyer (see: Civil Appeal 2098/97 Buskila v.  Buskila, 55(3) 837 (2001)), and also where the beneficiary paid his fees.  This does not constitute taking an improper part in the drafting of the will (see: Civil Appeal 760/86 Rosen v.  Shulman, IsrSC 34(3) 586 (1989)).
35. When the testator was competent and knew the nature of a will, the case law did not find evidence in these parameters of the involvement of the beneficiary of the will in drafting it. The test is the test of common sense, and each case will be examined according to its circumstances (see: Civil Appeal 5869/03 Hermon v.  Golov, IsrSC 59(3) 1 (2004)).
36. Not every influence is considered an unfair influence. Unfair influence is perceived as conduct on the part of the beneficiary of an improper hue, which is capable of changing or diverting the testator's free will.  It was held that the reference is to an unusual influence, which has an element of unfairness in the concepts of personal or social morality (see: Civil Appeal 4902/91 Goodman v.  Yeshivat Shem Beit Midrash High for Teaching and Religious Law, IsrSC 49(2) 441, 447 (1995); Civil Appeal 5185/93 The Attorney General v.  Marom, IsrSC 49(1) 318, 331 (1995)).
37. In accordance with case law, the burden of proof regarding unfair influence is on the person who claims the existence of such influence, and it is not enough to have a mere "fear of influence", but significant evidence is required that maintains a clear basis (see: Civil Appeal 190/68 Sotitzky v. Kleinburt, 22 (2) 138 (1968)).
38. Unfair influence denies the free and true will of the deceased, in such a way that the content of his will does not constitute an expression of his will, but rather the will of those who influence him.
39. The case law proposed four tests for examining the issue of unfair influence. The tests that have been set are cumulative.  In another civil hearing, Justice Matza 1516/95 Marom v.  Attorney General, 52 (2) 813 (1998) (hereinafter: "the Marom case") summarizes the four probes that will assist the court in deciding on the existence of unfair influence: independence, dependence, the deceased's relations with others, and the circumstances of the drafting of the will.

The first test - the test of the deceased's physical and mental independence:

40. The first auxiliary test requires the court to examine whether the deceased was independent, both intellectually and physically, at the time the will was drafted. The emphasis should be on intellectual-cognitive independence, when this independence may cover up the existence of physical dependence for the purpose of examining the testator's fitness (see: Estate Case (Tel Aviv)   L.  v.  S.  A.  (published in Nevo, January 17, 2016)).
41. To this end, the court must also examine the deceased's competence and examine his mental, mental and physical state, and assess whether the situation in which he was found could have affected his ability to "discern the nature of a will" (see: Civil Appeal 1212/91 LBI Foundation v. Felicia Binstock, 48(3) 705 (1994) (hereinafter: "the LBI Foundation case") and Civil Appeal Authority 7019/94 Gideon Lipevsky v.  Amalia Dan (published in Nevo, dated January 6, 1997).  To this end, the case law outlined three main parameters:
42. The testator's awareness of the very drafting of the will.
43. The testator's awareness of the extent of his property.

III.         The testator's awareness of the consequences of making the will in relation to his heirs.