From the general to the individual
- In our case, there is no dispute that two of the three basic components of a will in witnesses are fulfilled - the existence of a testament and the fulfillment of the written requirement (Shochat, p. 88), and it is necessary to examine whether the third element - the existence of two witnesses - is fulfilled. I found that the answer to this question is in the affirmative, and that the daughters were able to prove that despite the absence of the witness's signature on the will, she was present at the time the will was drawn up and signed by the testator, and that the deceased declared to her on various occasions that this was her will. I will discuss the requirements of section 25 of the Inheritance Law that are necessary for our case in order.
- Before I do so, I will note that I do not accept the applicants' argument that the reason for the lack of the community's signature on the will is a custom in the Druze community or perhaps part of the community's faith. This claim has not been proven and no effort has been made to prove it, and on the face of it it seems far-reaching. Nor is there room to elaborate on Sheikh Almoni's answers in this context in his interrogation, who did not testify as an expert witness on Druze law, and the hearing did not deal with proving the Druze law. I no longer believe that the alleged prohibition in and of itself, even if it was proven, has the power to cure the defect found in the witness's failure to sign the will.
The will reflects the free and true will of the deceased
- I will begin by saying that there is no doubt in my mind that the will reflects the free and true will of the deceased. In the first chapter of the judgment, I established the determination that there was no flaw in the deceased's ability to understand the nature of the will, as well as the determination that the daughters were not aware in real time of the late making of the will or the deceased's intention to make the will, did not exert an unfair influence on the deceased and did not take part in its drafting.
- In this context, the son made a great effort to convince the court that the motive behind the drafting of the late will had not been proven shortly after the early will was drafted. The daughters claimed that the background to the late will was anger on the part of the deceased towards the son, for believing that he had entangled her in debts and insolvency proceedings. On the other hand, the son wished to present his relationship with the deceased as normal and warm. The son sees the lack of motive, according to him, as evidence of unfair influence on the part of the daughters (paras. 98-110 of the summaries). In our case, I do not find it necessary to clarify the motive behind the drafting of the late will, and I do not find that it has any weight in our case.
- It is one of the first concepts that a person may make a will, change it or revoke it as he sees fit, whatever the motive for doing so. The question of motive may have weight where there is a suspicion of unfair influence, involvement in the drafting of the will, or mistake on the part of the testator in accordance with section 30(b) of the Inheritance Law. In our case, the suspicion of defects that occurred during the late drafting was removed - "In our law, the entire institution of the will is built on the principle of respecting the will of the testator: when he wants to testify and when he wants to dispossess it. In contrast to contract law, we are dealing here with a unilateral will, which is not at all influenced by the will or wishes of the heirs by force" (Civil Appeal 245/85 Yehudit Engelman v. Marta Klein, IsrSC 34(1) 772, 782)
- The freedom to make a will is enshrined in the provisions of the Inheritance Law itself, for example, in section 27, which enshrines the testator's right to make a will as he sees fit, and even to retract it, and cancels any obligation or provision in the will that contradicts the freedom given to the testator. It is not superfluous to add that this principle enjoys a constitutional level by virtue of the Basic Law: Human Dignity and Liberty, which honors the protection of the testator's freedom of property, to do with our property whatever he pleases, as stated in section 3 of the Basic Law - "No harm is done to a person's property."
- Other Municipality Applications 724/87 Varda Kalfa v. Tamar Gold (IsrSC 48(1) 022), the Honorable Justice Y. Maltz discussed the constitutional level that resides in freedom of staff, and quotes further from the words of the scholar G. Tedeschi in this context:
"There are two aspects to the principle of human dignity in our case:
- In its literal sense, which is expressed in respecting the last will of a person (sections 1-2 of the Basic Law: Human Dignity and Liberty).
- Freedom of property, which is expressed in the freedom of will, and its implicit expression, is found in sections 1 and 3 of the Basic Law: Human Dignity and Liberty.
Freedom, by its very nature, brings with it the danger that it will be abused. Prof. G. Tedeschi comments on this in his article: