And later on the same page:
Failure to disclose this important fact to the court undermines the credibility of Adv. Cohen's version as to the degree of clarity of the deceased or the degree of her willingness at that stage to give the gift of her own free will. It is not yet clear to the court why Adv. Cohen did not see fit to receive a medical certificate confirming that the deceased was lucid and able to understand what she was signing. Instead, Attorney Cohen stated that he relied on his experience in this matter. However, in circumstances in which the deceased was in a complex Saudi situation, it would have been appropriate for the lawyers to request medical confirmation regarding her cognitive state.
- The plaintiff repeated his testimony before me, according to which he was not present at the time the deceased signed the gift agreement. He further claimed in his testimony before me that Attorney Yaron Noah, who was alleged to have signed the gift agreement with the deceased, was twice (p. 29, para. 17). The plaintiff's testimony is contrary to what was stated in the affidavit, where he testified about one meeting that was held between the lawyers and the deceased, for the purpose of signing a gift agreement, when both of them signed the deceased. It appears that the plaintiff matched his testimony with that of Adv. Shai, who testified as the first prosecution witness, and the plaintiff was present during his testimony, heard it and testified afterwards. In addition, in the affidavit of the main witness, the plaintiff did not mention that there was a second meeting, during which only Attorney Yaron Noah was present and he was the one who signed it. When asked why he did not elaborate on this in his affidavit, he replied that he did not go into details, and he stated the circumstances in general terms (pp. 29, 29-30). I do not accept this testimony. This is a dispute in a cardinal matter, and the dispute regarding the circumstances of the signing is at the heart of the case. Therefore, I do not accept the plaintiff's explanations for the contradictions that were discovered.
- I also found that the plaintiff's duty should be attributed to the failure to bring Attorney Yaron Noah to testify. Attorney Shai Cohen stated in his testimony that Attorney Yaron Noah has been in Cyprus for several years (pp. 6, 11). However, in my opinion, these circumstances do not prevent his summons. This is a country that is a short flight away. Bringing him to testify does not involve particularly onerous expenses. With all of this in mind, I have no choice but to follow the presumption that if he had been brought to testify, he would have testified to the plaintiff's duty (see: Civil Appeal 548/78 Anonymous N. Anonymous, פ"D. 35(1) 736, 760 (1980); Civil Appeal 55/89 Koppel (self-driving) in a tax appeal v. Telcar Ltd."From, פ"4:44 (4) 595, 602 - 603 (1990)).
Bringing Attorney Noah to testify was critical in the circumstances of the case, not only because of the deceased's physical condition as the evidence showed. It emerged from the evidence, and there was no dispute about this, that the deceased could not read or write. The plaintiff was asked whether the deceased knew how to read and write, to which he initially replied with a variety of contradictory answers that cover all possibilities: "She did not know how to read and write, she knew how to read and write, I don't know if she knew how to read and write" (p. 31, s. 13). Later, when asked again, this time, he replied: "She didn't know, she didn't know, I don't remember" (p. 18, 16). Attorney Ofer Ron testified that to the best of his memory, the deceased did not know how to read or write (p. 47, paras. 1-3). I believe the testimony of Attorney Ron, who was a reliable witness and there were no contradictions in his testimony. On the other hand, the plaintiff's testimony on this matter was convoluted, and it is clear that he tried to conceal this fact. It was not proven in any way, on behalf of any of the lawyers, that the agreement and the affidavit were read to the deceased or explained to her before she signed them, as alleged.