Estate File (Haifa) 51710-09-20 Anonymous v. Anonymous - part 11

'In inheritance law in Israel, the testator's freedom of disposition prevails, although it is clear to all the risk that according to this freedom of inheritance, the testator will act arbitrarily and make a will out of improper motives.  However, in favor of the accepted principle, there are two weighty arguments.  The first is that without it, the individual's property would have been defective, and the second is that in each and every case of inheritance, the circumstances are different, and only the testators have the ability to know and evaluate them' ('Malbar Rights to Estate,' Mishpatim 11 (1981) 20, 33)" (p.  29 of the judgment).

94. In our case, I was persuaded that the deceased was not satisfied with the prior will and its reasons accompanying it. It is doubtful whether we would have been able to get to the bottom of her mind and to weave the deceased's motives in this context, even if we had wished to do so.  As the Supreme Court said in the Marom case:

"The testator cannot testify.  The beneficiary is concerned, whose testimony naturally requires great caution.  Many times, even those who drafted the will or witnessed its drafting are involved, even though they do not receive it, or do not have much valuable information.  For this reason, it is usually not possible to reach a direct conclusion as to the motives and factors that led him to make the will that he made and to instruct him in it" (Additional Civil Hearing 1516/95 Marom v.  Attorney General, IsrSC 52(2) 813, 849).

95. The deceased's dissatisfaction is learned from the testimony of the witness to the will, which I will elaborate on later on. According to the witness, "She told me that she had made and prepared a piece of paper and that she wanted to change it and write the house for the girls" (Prot.  30 March 2023, p.  28, s.  16).  And more:

"Q. Do you know that she made a will with a sheikh Anonymous Right?

1. She told me but didn't show me. She said she wanted to change the page with [Anonymous Sheikh].
2. Matti said she made a will with the sheikh Anonymous?
3. When we returned from the club, she asked me to accompany her to the sheikh to exchange the will" (ibid., para. 23)

"Q. I explain why we summoned the sheikh to testify.  Since three weeks had passed with the sheikh Anonymous For her visit to the bush AnonymousWhat happened in those three weeks, why did she change her mind?

1. I told her that I had already prepared a will, I asked her why she wanted to change a will, she said that her children were not good to her, so she would give equally. I don't want to give equally, but to give the house to build because[Son] There's already its part" (p.  31, s.  9).

"A. She said she felt it was a mitzvah.  The deceased told Siach that she felt that he was playing with the previous will, and he told her Ahlan and Sahlan.  That she feels, the deceased, that he was playing with the previous will and she wants to replace the will" (p.  33, s.  9).

96. Thus, something was on the deceased's conscience, and shortly after the early will was drafted, she felt a sense of remorse and a desire to retract it, and so she did. This act is protected, as stated, and as a basic right of the deceased to do with her property as mature.  Considering the rejection of the son's claims of defects in the drafting of the will, I am convinced that the will reflects the free and true will of the deceased.

The deceased brought the will before the witness

97. We have established the rule and the position of the scholars according to which the Inheritance Law does not place the witness's signature on the will as a fundamental component of the will in the witnesses, provided that the testator "brought" the will in front of the witnesses. The rule is that "the law does not determine the ceremonial or practical way by which the testator fulfills the condition within which he 'brings' the will before the witnesses" (Family Appeal (Be'er Sheva) 57029-05-18 M.S.    A.H., dated November 29, 2018, p.  22).  The Honorable Justice Shochat is also of the opinion that "it is sufficient for the testator to 'bring' the will before the two witnesses, not necessarily at the same time, but even on two different occasions" (my emphases, Shohat, p.  96).
98. In our case, the witness to the will knew in advance that she was accompanying the deceased to the Sheikh's house for the purpose of drafting a will, which would come under another will that she had signed in the past:

"Q.    Do you know that she made a will with a sheikh Anonymous Right?

1. She told me but didn't show me. She said she wanted to change the page with [Anonymous Sheikh].
2. Matti said she made a will with the sheikh Anonymous?
3. When we returned from the club, she asked me to accompany her to the sheikh to exchange the will" (Prot. 30 March 2023, p.  28, s.  22).
4. I will quote again from the witness's words to the will in her interrogation, because "I asked her why she wanted to change a will, she said that her children were not good to her and therefore she would give equally" (p. 31, s.  11).
5. It should be said from now on that when the witness to the will accompanied the deceased to the Sheikh's house for the purpose of making the late will, she knew in advance the reason for her arrival, and knew that the visit was intended to make a will that was intended to change a previous will, and therefore she also knew, after the fact, that the document with which the deceased left the Sheikh's house was her will.
6. I was further persuaded that the witness to the will was present at the actual making of the will and witnessed the dialogue between the deceased and the sheikh and the expression of the deceased's wishes to him. Contrary to the son's claims, I was persuaded that the witness was indeed present at the Sheikh's home and accompanied the deceased on this visit, which was intended for the purpose of drafting a will.  I see no reason to doubt the testimony of the honorable sheikh in this context, according to which the deceased came to his home accompanied by her (transcript of 22 November 2021, p.  4, s.  9).
7. The testimony to the will is as follows:

"To the court's questions:

1. Did you see her stamped at the sheikh's house? What was there?
2. She doesn't know how to write. The sheikh wrote.
3. And were you next to her or somewhere else?
4. I was next to her.
5. Did she tell the sheikh that she was changing a will? Like she told you?
6. She said she felt it was a mitzvah. The deceased told Siach that she felt that he was playing with the previous will, and he told her Ahlan and Sahlan.  That she feels, the deceased, that there was a play in the previous will and she wants to replace the will.
7. Did she detail what the game was?
8. I didn't hear. I sat next to her.  But the whole conversation was between him and the deceased.
9. And you didn't listen?
10. Nope. I wasn't involved.  I didn't know we would get here.  What is left is for those who live.
11. Were you involved or were you just sitting and not involved?
12. I saw that he was writing and that was it. And I asked her, what did you do? She said she made the will. 
13. I ask about that moment.
14. I'm not lying. I say what I heard.
15. I ask not about after or before, I ask what happened with the sheikh.' When she signed for him, what do you remember?
16. She said she wanted to change the will. And she said she wanted to change because she felt it was a game.  And he smiled(Prot.  30.3.23, p.  33, S.  3-23).
17. I am persuaded by the fact that the witness sat next to the testator at the time of making the will and the conversation with the sheikh, and even if, according to her words, she was not aware of the exchange between the deceased and the sheikh and did not listen to the details of the will, she also knew that the document that would be issued by the sheikh after the conversation and signed by the deceased and the sheikh was the will of the deceased.
18. But not only that. I was convinced that after the late will was made, the deceased "brought" the will before the witness for a will, literally.  In other words, she told her that it was a will and even gave it to her, and the witness examined it and read it.
19. It was proven before me that the deceased delivered the late will to the witness, and it was the witness who gave the late will to the daughters after the death of the deceased. During her interrogation, the witness noted that "and then when we were back, she asked me to go together to Sheikh [Anonymous].  And she asked that I give the page to me and give it to the girls when she died after her death, and she also put one in the coffin" (Prot.  3.23, p.  28, s.  17).  This should be seen as an explicit declaration by the deceased towards the witness that the document she is handing over to her is her will.  Moreover, I am persuaded, as stated, that the witness examined the will and there could be no doubt in her heart, that this is the will of the deceased, which she accompanied for the purpose of making it:

"Q. Have you read the will yourself?

1. I read and accompanied her as she put it in the closet and gave me a copy and told me I would give it to her daughters after I died.
2. When did she first read the deceased's will?
3. On the day we returned home from the sheikh and from the visit to S.'s'. That day I also slept with her.
4. Did you read the will after you returned from the sheikh?
5. The next day" (ibid., p. 29, p.  29).
6. I will note that this testimony is consistent with the testimony of the daughters, that they did not know of the existence of the later will, and that they became acquainted with it for the first time after the death of the deceased and after the witness handed it over to them (see the testimony of daughter , Prot. 29.3.23, p.  31, s.  28; testimony of daughter L.: "Anissa told us after the funeral that there was a will.  Maybe three days after my mother died" (ibid., p.  40, s.  22).
7. There is therefore no doubt in my opinion that in our case the requirement of section 25 of the Law is met, that the deceased brought the will before the witness, who knew, as stated in advance, that the document in question was a will, and even examined it after the fact and learned directly from the deceased that it was her will. Considering that I am convinced that the deceased made the will of her own free and genuine will, I find that the way is open to make use of section 25 and to determine that the basic components of the will are fulfilled - the existence of a testator, the existence of a written, and the presentation of the will before the witnesses.

The Early Will

108. Where the arguments regarding the validity of the late will were rejected, and it remains valid, it contradicts and nullifies the early will by virtue of 36(b), even if there is no defect in the early will and it fulfills all the conditions of the law for its fulfillment. Nevertheless, and for the sake of the completeness of the decision, I will also discuss the matter and base my conclusion.
109. The early will does not suffer from a formal defect, and this was not even claimed. The burden of proving that there was a defect in it rests on the shoulders of the applicants.  In addition to the deceased, the will was also signed by Sheikh Anonymous - the drafter of the will - and they are two witnesses, Mr. P.B.  and Mr. S.B.  From the outset, the daughters did not raise an argument that there was a defect in the early will, the deceased's ability to execute or her free will, and they raised only one claim - that the early will was revoked upon the making of the late will by virtue of section 36(b) of the Inheritance Law, since the late will contradicted the previous one.  Section 36(b) is instructed as follows:

"A new will, even if it does not explicitly revoke a previous will, is considered to cancel the previous one to the extent that the provisions of the new will contradict the provisions of the previous will, unless the new will contains nothing but an addition to what is stated in the previous will."

110. I found that the late will does indeed contradict the earlier will in terms of its content and that the requirements of section 36(b) are met. Apart from this argument, therefore, the daughters did not raise any other argument against the will as aforesaid (see 54-56 of the daughters' affidavit and paras.  125-137 of the summaries of the understandings).  The son, for his part, did not raise arguments against the fulfillment of the conditions of section 36(b).
111. I am convinced that there was no flaw in the early will, which in itself does not give rise to any difficulty. It was determined that the deceased understood the nature of the late will, which was drawn up three weeks later, and there is no indication that there was a defect in the deceased's understanding at the time of drafting the early will.  I was further persuaded that the son did not know of the existence of the prior will and that there is no reason to attribute to him unfair influence or involvement in its drafting (see the son's testimony, transcript of 27 May 2024, p.  10, s.  3; and the testimony of Sheikh Anonymous about the son's approach to him after the death of the deceased (transcript of 16 May 2024, p.  6, s.  16).  I was strengthened in my opinion by the testimony of Sheikh Anonymous, who described in detail the circumstances that preceded the drafting of the will, the application to him for the purpose of drafting the will, and the status of the signing of the will (transcript of 16 May 2024, p.  2, para.  2 onwards).  I was also convinced from his testimony that he read the will to the deceased and that the deceased understood the provisions of the will well (ibid., p.  7, para.  34).  I was also positively impressed by the testimony of the witness to the will, Mr. S.P., that there was no blemish in his eyes in the deceased's ability to command freely (ibid., p.  12, para.  9).
112. It therefore follows that no cause of nullity has been proven (or even claimed) in relation to the prior will, and if it had stood alone, there would have been no impediment to granting an order for its execution. However, this is not the state of affairs in our case, given that the late will is in effect.  I found that the two wills contradict each other, at least in their main provision in relation to the deceased's apartment and its essence, and that the conditions listed in section 36(b) for the revocation of the implied prior will are met.
113. As may be recalled, the early will grants the son the apartment of the deceased, while the will grants the daughter only the right to live if either of them divorces. On the other hand, the later will grants the apartment in equal parts to the girls, while to the son it grants the "parcel of land belonging to that apartment" - whatever the intention may be and to the extent that this distinction between the land and the apartment is possible.  Without derogating from the words, I will quote the words of the scholar S.  Shiloh, who insisted on the implied annulment of an early will and the identification of the necessary contradiction between the two wills:

"It seems that section 36(b) should not be interpreted strictly by means of a careful comparison of the provisions of the two wills, and it should always be determined that if there is no complete overlap regarding the manner in which the assets are divided, the provision in the first will, which does not contradict the provision of the later will, should be left in place.  It stands to reason that if the content of the last will indicates that the testator intends to make a completely new general arrangement regarding the transfer of his property after his death, the new will should be regarded as completely canceling the first will.  This is even if here and there it appears that it is technically possible to leave this or that provision of the first will in effect, because there is no contradiction between a certain detail in the first will recently.  In such a case, the first will - in its entirety - should be regarded as implied nullity." (S.  Shiloh, Interpretation of the Inheritance Law, 5725-1965, Nevo, p.  322).

114. I am satisfied that the two wills are essentially contradictory, as stated, and with respect to the granting of the deceased's apartment, they are opposite to each other. Hence, section 36(b) is fulfilled in our case and the first will is void.

Conclusion

115. In the later will, there was a formal defect, which was not signed by the witness to the will. This defect transferred the burden of the deceased to the shoulders of the daughters, who met the burden and were able to prove to my satisfaction that the deceased knew how to discern the nature of the will.  The daughters also proved that they did not know about the drafting of the will in real time and could not influence the deceased in one way or another to make her late will.  Nor could they have been involved in the drafting of the will.
116. The law recognizes the court's authority to execute the will even in the absence of the witness's signature on the will, and I have found that the conditions for exercising this power are met. First of all, there is no doubt in my eyes thatthe deceased signed the late will of her own free will, and as stated, the daughters did not know about the drafting of the late will.
117. I will not ignore the questions raised by the late will and some of the circumstances of its drafting. This is the case with regard to the narrow time gap between the two wills.  It is possible that in other circumstances this would have aroused suspicion in relation to influence or exploitation, and there would have been room to give weight to the short time gap and to wonder about it alongside other circumstances that raise doubt regarding the testator's free will.  However, I find that this is not the case in our case, where the daughters did not know about the drafting of the will in advance and it is not possible to attribute to them any involvement in the drafting of the late will.  The narrow time gap should be attributed to Noah herself and her choices, not to her daughters.  As I have noted, the deceased retracted her desire to bequeath her apartment to Ben, and exercised her freedom to do so and change the will within a short period of time, which I do not find to be of any weight in our case.  The fact that the deceased turned to another sheikh in order to make a new will also does not raise any doubt as to the deceased's free will.  One can only speculate as to why the deceased did not return to the sheikh who made her early will, perhaps she felt uncomfortable with the request to change the will shortly after it was drafted, or perhaps she asked to keep the act secret and shared it only with her close friend, a witness to the will.  I found that the deceased's application to another sheikh was the result of her personal choice and should not be attributed to anyone else, and she does not arouse any suspicion or doubt in our case as to her free will.
118. It is also true that in the later will the identity numbers of the deceased and the daughters were not mentioned, but in our case there was no doubt as to the identity of the testator and the identity of the beneficiaries in any of the wills. In a parenthetical article, it should be noted that both wills are deficient in the description of the land and the boundaries of the various assets.  This difficulty is common to the two wills, it will make it difficult for the execution of each of the wills and its validity will be clarified in the bankruptcy proceeding, but it does not affect the complete and free will of the deceased as reflected in the later will.
119. These difficulties listed above - the short time gap, the referral to another sheikh and the missing details in the late will - do not detract in the circumstances of our case from the degree of persuasion and lack of doubt in my opinion that the late will is the result of the deceased's free will.
120. I was further convinced that the deceased "brought" the will before the witness for the will. This requirement is fulfilled on the basis of the witness's prior knowledge that the purpose of the visit to the Sheikh's house is to make a will under an earlier will, on the basis of the presence of the witness to the will at the time of signing the will, and on the basis of handing over the will to the witness for a will after the fact.
121. I also found that the conditions set forth in section 36(b) of the Inheritance Law are met in such a way that the two wills contradict each other and in relation to the deceased's apartment they are opposite to each other. Hence, the late will annuls the earlier one, and therefore an order must be issued for its execution.

Conclusion

122. On the basis of what is stated in the judgment, I hold as follows:
123. The daughters' request for a probate order for the later will is accepted, and their objection to the earlier will is also accepted.
124. The daughters may submit a probate order for court approval.

• The son's objection to the late will and his request to execute the early will are rejected.

1. The son will pay the daughters legal expenses in the amount of ILS 8,000 within 30 days from today, and from that date until the actual date of payment, the sum will bear linkage differentials and interest in accordance with the law.

The judgment is permitted to be published, subject to the omission of the parties' details and proofreading corrections.