Burden of proof
- In our case, the later will suffers from a formal defect, in the form of the absence of the witness's signature on the will. As a result, the burden of persuasion is shifted to the shoulders of the applicants for probate of the will, to prove that the will indeed reflects the testator's free will. The Honorable Justice S. Shochat explained in this context:
"A settled rule is that a will that appears to be valid from a formal point of view, is presumed to reflect the free and true will of the testator. Anyone who wishes to invalidate the will [...] bears the burden of persuasion (bringing evidence) [...] This rule does not apply where the will that is sought to be executed does not include the formal elements required by sections 19, 20, 22 and 23 of the Law. If such a formal defect exists, there is no room for the same presumption [...] However, this does not invalidate the will. The legislature allows the will to be executed despite the defect, but the burden of persuasion (the duty of proof) in a true will then shifts to the shoulders of the person seeking to execute it, and it is he who must convince the court that despite the defect, the will is an expression of the testator's true and free will, in which case any doubt will act to revoke the will" (Shaul Shochat - "Defects in Wills", 5776-2016, p. 69; hereinafter - "slaughterer").
The Claim of Forgery
- The son weakly claimed that the deceased's signature on the late will was not her signature, and that it was forged by someone. The son did not develop this claim and did not pretend to do so, and it is clear that he did not prove it. The son did not petition for the appointment of an expert in handwriting identification and did not present to the court any indication, no matter how urgent, that the signature on the late will was not the signature of the deceased. When asked about the allegation of forgery during his cross-examination, his answers were unsatisfactory and did not demonstrate knowledge or reliability:
"The Honorable Judge: Okay, so wait a minute, ma'am, let's translate the question for him, does he insist on the claim of forgery of the late will?
- (interpreter): Yes" (Transcript of May 27, 2024, p. 2, s. 13)
"Q: The objection was accepted, I will ask the question differently, even though the Sheikh testified before us, Sheikh [Anonymous]He testified before us that this signature of the deceased who signed before him, do you still insist on this claim that the signature is forged?