This is a purely hereditary provision (which, as aforesaid, is intended to apply only in circumstances in which "the man shall pass away" and as an undertaking intended to "prevail over any provision of a will") that the Respondent is petitioning to apply today, following the death of the deceased, to an asset that was defined in the prenuptial agreement between them as an unbalanced asset, an apartment in which the Respondent did not acquire any rights prior to the death of the deceased, neither by virtue of her cohabitation with the deceased nor by virtue of the provisions of the prenuptial agreement. Therefore, in my opinion, this is a provision that directly contradicts the provision of section 8 of the Inheritance Law and is invalid.
Therefore, the transfer of a hearing place in the Nachshon case does not help the Respondent. In that case, an appeal was accepted against a judgment given by the District Court, which ruled that a gift agreement made by the deceased during his lifetime was void because it was a "gift due to death" that is prohibited under section 8(b) of the Inheritance Law (this was the opinion of the majority of the members of the panel, the Honorable Justice Baron, which the Honorable Justice Vogelman joined, and this was against the minority opinion of the Honorable Judge, as he was then called Amit). However, in that case, the position of all the members of the panel was that the gift there (which was the obligatory right to be registered as the owners of the land) was completed before death, and it was found that "an interpretive examination of the circumstances of the gift transaction shows that the parties intended to transfer immediately, upon the signing of the agreement, the 'property' - i.e., the obligatory right - from the deceased to the appellant... The various limitations in the agreement, relating to the rights of the deceased - even if they were capable of creating contractual obligations between the parties - did not empty the 'asset' that was transferred to the appellant when the agreement became more sophisticated" (see the words of Justice Vogelman in the judgment). Justice Baron noted in the judgment that a restrictive interpretation should be given to the provision of section 8(b) of the Inheritance Law, because "the nullity provision in the section entails a significant restriction on the freedom of contracts, as well as an infringement of the individual's freedom to undertake to make transactions with his property. Such an injury may be justified when the intention of the parties is indeed that the gift will be transferred to the recipient only after the death of the giver; This is not the case when it turns out that the parties intended that the gift would be transferred to the receiver immediately, while the giver retains some control over the gift by imposing restrictions or charges on the recipient. To the second type of case, in which the parties requested that the gift be granted immediately, the prohibition set forth in section 8(b) ofthe Inheritance Law should not be applied as a rule. The intention of the parties to the gift transaction - whether it was granted immediately or perhaps only after the death of the giver - can be learned first and foremost from the language of the gift agreement and the circumstances of its conclusion, as well as from the conduct of the parties before and after the engagement between them in the gift transaction..." (paragraph 15 of the judgment). Later on, the Honorable Justice Baron analyzed the circumstances that led her to the conclusion that the intention of the parties to the gift agreement was to grant the appellant an obligatory right in the property and to improvise, including the language of the gift agreement (which uses the term "finished gift" several times); an irrevocable power of attorney given in favor of the appellant; the affidavits of the parties attached to the agreement; The testimony of the attorney who drafted the gift agreement and more (paragraphs 17-18 of the judgment). All of this led the Honorable Justice Baron to the conclusion that in that case "the gift transaction was completed and the deceased's rights in the property were transferred in full to the appellant, upon the signing of the gift agreement. In this situation, there was no room to determine that we are dealing with a gift whose date of acquisition is the death of the deceased, i.e., "a gift due to death"; These rights were granted to the appellant immediately" (paragraph 19 of the judgment).