Other Municipal Applications 423/75 Ben Nun v. Richter, IsrSC 31(1) 372 (1976) A will was invalidated for two reasons: first, that the testator signed a will in a language in which he did not speak (on the same basis it was not proven that the gift agreement was read to the deceased); second, from the circumstances surrounding the case, the existence of the testator's dependence on the beneficiary, which was so comprehensive and thorough that it can be assumed that the testator's free will was denied. Similarly, in other municipal applications 562/85 Ehrenstein v. Raz, IsrSC 42(2) 418 (1988) (hereinafter: "the Ehrenstein case"), the will of an elderly woman who was childless was invalidated on the grounds that she had signed a will in which the witnesses declared that she had read the will and it is doubtful whether she knew how to read. It was also held in the same matter that the circumstances surrounding the case indicate a fundamental dependence on the beneficiary. In Civil Case (Tel Aviv District) 1781/88 Rechtman v. Haklai, IsrSC 5751(1) 182 (1991), Judge Ben Yair invalidated a power of attorney given by an elderly person who suffered from an advanced illness and was completely dependent on the person in whose home he was staying.
The connecting line between the various rulings cited above is that the creditor, an elderly and exhausted person, was completely and fundamentally dependent on the beneficiary. This situation has a built-in power gap. The conditions for applying the presumption of unfair influence in signing wills are tangential to situations of entering into agreements, taking into account that both deal with the will of the creditor. In the Makhakashvili case, the Supreme Court chose a different technique in the contractual context, whereby if absolute dependence is clearly proven, this will ease the burden required with respect to the other conditions, and will lead to the conclusion that the other conditions are met.
- In the case of the Eden Hotel, the Honorable Justice Melcer listed the tests for the purpose of proving a relationship of dependence, which have the power to establish the presumption of unfair influence. These tests can be used by the court in discussing the cause of action, regarding the question of whether there is a fundamental and absolute dependence between the creditor and the beneficiary. Here are the tests:
- The independence test deals with the question of whether, during the period in which the unfair influence was exercised, the "entitler" was physically and intellectually-cognitively independent, and to what extent?
- The Assistance Test – It concerns the question of whether the relationship that existed between the beneficiary and the "creditor" was based on the provision of the assistance that the "creditor" needed? - If it was the "beneficiary" who helped the "beneficiary" to overcome its difficulties and limitations, the court will be inclined to determine that the "entitler" was dependent on the beneficiary. Of particular importance, in this regard, is the question of whether the beneficiary was the only one who assisted the "creditor" in all his needs, or whether the "creditor" was also assisted by others.
- The test of the "entitlement" relationship with others – concerns the question of whether and to what extent the "entitler" was connected to the relations with others. If it becomes clear that during the relevant period the "entitler" was detached from other persons, or that his relations with others were minimal (and in this regard it does not matter whether this stemmed from the conduct of the "beneficiary", the conduct of others, or circumstances related to the objective situation of the "entitler"), the assumption that the "entitler" was indeed dependent on the beneficiary will be strengthened.
- The test of the circumstances of drafting the qualifying document: It is possible that the involvement of the "beneficiary" will constitute prima facie evidence of unfair influence on the "creditor", or, at the very least, a consideration relevant to the establishment of a presumption of the existence of such influence on him.
- In addition to the aforementioned auxiliary tests, an additional auxiliary test was established in the case law, which can be called the "counseling test" and relates to the question of whether the "qualifier" enjoys independent and independent legal advice when drafting the qualifying document.
From the general to the individual:
- After considering the arguments of the parties and the evidence presented in this matter, I have reached the conclusion that the conditions for the existence of the cause of oppression are crystallized, and therefore the defendant-heir of the deceased has a right to cancel the agreement in accordance with this ground. The evidence leads to the conclusion that there was a comprehensive and thorough dependence between the deceased and the plaintiff and the late Yaffa z"l, which can be assumed that the deceased's free will was denied.
The deceased's health condition – dependence on the plaintiff:
- For reasons reserved with the parties, none of them attached the deceased's medical documents to his evidence, with the exception of one medical certificate that the plaintiff attached, which we will discuss below. Although the defendant attached medical documentation to the statement of claim, for reasons that are reserved for her, she did not see fit to attach them to the exhibits on her behalf. I also assume that this was done in good faith due to a procedural error by the defendant or her counsel.
However, there is no dispute between the parties that at the time of the alleged signing of the gift agreement, the deceased's physical condition was poor, confined to her bed, and she was not an independent woman. The dispute between the parties, according to the pleadings and affidavits, is whether the deceased was mentally and cognitively lucid, while the statement of defense claimed that the deceased was demented. The plaintiff claimed that the deceased was lucid. According to the plaintiff's testimony, the deceased was unable to move on her own and needed full assistance in all operations. Thus the plaintiff testified that the late Yaffe was showering the deceased on the bed (p. 33, s. 16). From here the deceased was confined to her bed. In addition, if the deceased had to be moved outside the house, this would involve calling an ambulance. The plaintiff testified that he would take the deceased for a walk in the Hadar neighborhood (the place she liked to go) and for that purpose he would take her in an ambulance (pp. 34, 28-32). The plaintiff further claimed that he would take her twice a week to Herzl Street (Hadar neighborhood) in an ambulance (pp. 34, 37). The plaintiff's sister, Mrs. Elinor Atar, testified that the late Yaffe would take the deceased to Rambam Hospital for treatment with the help of an ambulance, but she does not remember how many times she needed treatment there (pp. 75, 11-19). Similarly, the defendant testified that when the deceased left her home, she called an ambulance for her and the doctor decided to evacuate her to Rambam Hospital (p. 59). In order to fly her to Israel, the defendant testified that the plaintiff sent her a doctor to London to accompany her on the flight to Israel because of her complex condition (pp. 58, paras. 1-9). Regarding the condition of the deceased when she arrived in Israel, the defendant testified (at p. 54, 33 - at p. 55, 4) that her mother was diabetic, she could not walk on her legs, and as a result pressure sores developed as a result of prolonged lying down, the condition of her lungs was not normal, and after tests she underwent, she was diagnosed with dementia.