Estate Case (Nazareth) 64800-10-20 G.S. v. 1 Y.A. - part 3

(See: Civil Appeal 851/79 Shulamit Bandel v.  Doron Bendel, 35(3) 101, 105 (1981) and TA (Tel Aviv) 40917-10-17 S.  A.  v.  D.  G.  S.  (published in Nevo, September 21, 2020)).

The burden of persuasion regarding the lack of training for the staff rests with the opponents.  This is a heavy burden of proof that requires the presentation of "concrete and clear evidence" (see: Tax Appeal 3539/17 Anonymous v.  Anonymous (published in Nevo, June 11, 2017) and Family Appeal (Haifa) 27565-09-16 L.N.  v.  A.D.  (published in Nevo, April 2, 2017, and the judgment in the case of the Libi Foundation, at p.  734).

The second auxiliary test - the test of dependence and assistance between the winner and the testator:

42. Where it becomes clear that the testator was indeed not independent and needed the assistance of others, it is necessary to examine the relationship that existed between him and the beneficiaries, and whether this relationship was based on the provision of assistance that the testator needed. It was ruled that the assistance of another person is liable to place the testator in a state of complete dependence on the person assisting him.

The third auxiliary test - the test's relationship with others other than the winner according to the will:

43. A decision on the question of whether and to what extent the mitzva was dependent on the beneficiaries can also be influenced by the extent of the connections that the mitzva has with others other than the beneficiaries. If it turns out that the testator in the relevant period was completely detached from other people, or that his contacts with others were few and rare, the assumption that the testator was indeed dependent on the beneficiary of the will will be strengthened.

The fourth auxiliary test - the test of the circumstances of the drafting of the will, including the degree of the beneficiary's involvement in its drafting. 

44. This test examines the circumstances of the drafting of the will and the extent to which the beneficiary in the will was involved in the drafting of the will and what part he took in drafting it. In this test, the degree of the beneficiary's involvement must be examined, and if it is proven that his involvement was significant and great, it will be possible to order the invalidity of the will.
45. It should be noted that according to the case law, there is no obligation to meet all of the tests detailed above, and in fact, the existence of one of the aforementioned tests is sufficient to order the invalidity of the will.

From the general to the individual:

46. In the framework of the claims, the court must rule on three arguments raised by the defendants, namely:

• Whether the will was drawn up under unfair influence on the part of the plaintiff and should be ordered to be revoked in accordance with the provision of section 30(a) of the Inheritance Law.
• Are the actions of the plaintiff in connection with the will, sufficient to bring about its annulment, due to the provisions of section 35 of the Inheritance Law?
• Did the deceased indeed sign the will due to a mistake and/or deception and/or lack of understanding, and did the deceased not understand the Hebrew language sufficiently to express her desire to the testator regarding the content of the will that she wishes to make and did she understand what was written in the will?

47. After hearing the evidence and testimonies of the parties, and after in-depth examination and consideration, I have reached the conclusion that the defendantYam did not meet the burden imposed on them and did not prove that the will was drawn up under unfair influence on the part of the plaintiff. It has not been proven at all that plaintiffT took part in the drafting of the will, nor was any evidence brought to show that plaintiffT was directly and centrally involved in the drafting of the will and assisted the deceased in drafting the will, and even if there was any intervention, it does not create any intervention by the plaintiff that is illegitimate.  Further, the opponents were unable to prove that the deceased did not understand and did not speak the Hebrew language.
48. First, I found that the defendants' argument that the burden of proof should be ordered to be reversed. A perusal of the will itself shows that there are all the elements of the will in the witnesses according to section 20 of the Inheritance Law, there is also a chronological order in the process of drafting the will, with the body of the will explicitly stating the deceased-testator's declaration that "this is my will", and after declaring that this is her will, she signed the will in front of them, and the two witnesses signed the will as witnesses on the same occasion.  Therefore, I have not found that in this case the conditions for reversing the burden of proof are met.

Test of the deceased's physical and mental independence:

49. From the evidence material, and even from the testimonies of the defendants themselves and the plaintiff, it emerges that the plaintiff was, during the period relevant to the drafting of the will, a physically independent, intellectually and cognitively independent woman and lived in her apartment. The deceased was a woman of clear mind.  From the testimonies of the plaintiff and the opponents, it appears that the deceased, despite her age, worked in a hospital *** in *** for 10 years.  The deceased was independent and went to work on her own and without any help from any of her family members.
50. The objectors claimed that their deceased mother drove to work by regular transportation in order to show that the deceased could not travel alone, but I did not find it acceptable to accept this argument, which does not testify that the deceased could not travel alone, and this claim was also made without any evidence and/or references. And above all, the son of the deceased, Mr. Y.    testified that his mother used to take the bus to work.  And so Mr. Y.  testified.  In this regard:
51. What means of transportation did she use to get to work, would she drive there?
52. She would take the bus.
53. Which bus line?
54. That was 40 years ago.
55. On the way back she would also take the bus?
56. Yes.

See his testimony on page 18 of the transcript, lines 13-18 . 

51. And to the Court's question on the same matter of commuting to work, Mr. Y.   answered:

To the court's question:

1. Which bus did your mother take?
2. On the regular line. My mother was healthy

See his testimony on page 19 of the transcript, lines 4-6 .

52. It should be noted and emphasized that the test of physical and mental independence is examined during the period of time prior to the drafting of the will and not after it was drafted. The deceased's physical and health condition deteriorated only in 2016, when she suffered a stroke, and only from that date did she become dependent, confused, and her physical and mental capacity was impaired.  It should also be noted and emphasized that even in the medical material it is explicitly stated that until the stroke, the deceased was independent in her functioning and made purchases alone, in complete contradiction to the attempt of the opponents to claim otherwise.
53. Support for the above is also supported by the testimony of the daughter of Z.   That she is one of the opponents.  Ms. Z.  B.  She testified that her deceased mother's condition deteriorated and deteriorated only after the stroke she received and that until the event she was independent in her functioning, and this is how her testimony in this regard before the court was:
54. Until your mother had her first stroke, she was independent, cooking and shopping herself, and managed her household with a high hand.
55. That's right.

See page 30 of the transcript, lines 32-33 . 

54. Support for this version is also found in the testimony of Attorney P. who testified that the deceased seemed perfectly fine, opinionated, assertive, and that she expressed herself in a very clear manner.  P.  He testified that he had no reason to doubt her health and there was no reason to ask for a medical certificate.  Attorney P.  also testified that he was impressed by the deceased, by her performance despite her age, and this was his testimony on this matter:
55. There is something else that you missed in details, to find out her condition, if she was on the current date of making the will, where she lives, a full address, if she knew her identity card, that she is cognitive, health-oriented.
56. Even when she came to me to make the inheritance order after her husband and when the will was drafted, I had no reason to doubt her health condition, I had no reason to ask for a medical certificate, she seemed perfectly fine, opinionated, assertive, and she expressed herself quite clearly.

See page 7 of the transcript, lines 10-15 .