Estate File (Haifa) 51710-09-20 Anonymous v. Anonymous - part 6

A:                    In front of all of us and also in front of me, not only does she stamp every person for whom I will make a will, he writes about the will

The Honorable Judge:   We didn't ask about each of them, he asked about the deceased, the deceased signed for him?

A:                    Yes in front of your eyes" (my emphasis, p.  9, s.  29).

38. I was further persuaded by the testimony of the witness to the will - which I will elaborate on later in the discussion regarding her lack of signature on the will - that the deceased signed the late will in her presence and in front of her eyes, and as she put it, "I was next to her" (Prot. 20 March 2023, p.  33, s.  3).
39. I am therefore persuaded by the testimonies of the daughters, the testimony of the honorable sheikh and the testimony of the will, as well as by the son's arguments in this matter, that the deceased did indeed sign the will with her signature, and I reject the claim of forgery.

The deceased's ability to discern the nature of the will

40. I will address this issue briefly, since it was also argued in a very weak manner, not to mention implicitly. The argument was raised in the son's affidavit, and according to him, "This is a will that was made under pressure and coercion, under unfair influence, not with a clear mind and while taking advantage of the deceased's health and mental state and taking advantage of her weaknesses and being at an advanced age" (para.  21).  In his summaries, the son claims that the deceased was dependent on the daughters "due to her state of health" (para.  81).  This is a general and incidental argument in nature, and it is far from appropriate to the scope and nuances of the issue.
41. Section 26 of the Inheritance Law dictates that "a will made by a minor or by a person who has been declared invalid or made when the testator did not know how to discern the nature of a will is void."
42. The legal starting point is the presumption of kashrut - it is the assumption that a person is competent to understand the act of the will and its results, and the burden of proof rests on the person who claims otherwise:

"It is generally clear that a person who is fit for legal actions - including making a will - is presumed to be a testator and a testator is presumed to know the nature of a will when making his will.  One who claims that at the time of making a will the testator did not know how to discern the nature of a will - the burden is on him to prove his claim" (in Tax Appeal 3539/17 Anonymous v.  Anonymous, dated June 11, 2017).

43. It should be emphasized that the clarification of the deceased's fitness to execute the will relates to the actual date of the drafting of the will, and not to the condition of the deceased on the eve of her death or prior to the drafting of the will:

"The restriction imposed on a person who did not know how to discern the nature of a will concerns the mental, mental, and physical state of the testator at the time the will was drafted, when the relevant point in time is the date the will was signed, and the evidence must be correct for that date, even if before and/or after the situation changed" (emphasis added) (Family Appeal (Haifa) 27565-09-16 L.N.  (The Nurse) v.  A.D.  (The Brother), dated April 2, 2017; and see also Civil Appeal 7506/95 Schwartz v.  Beit Ulpana Beit Aharon and Israel, IsrSC 55(2) 215).

44. In our case, the son did not show any effort to shed light on the deceased's state of health at the time of the drafting of the late will or at any other time. The son's claim that the deceased was "dependent" on the daughters due to her condition does not raise or lower it, since this argument relates to the period later than the date of the drafting of the will, and in any case, the son did not demonstrate any effort in this regard.
45. More than necessary, this argument is like a double-edged sword over the son's head. Where there is only about three weeks between the dates of drafting the wills, the son will have great difficulty convincing that the deceased was fit to execute at the time of the early will that he wishes to keep, but that her capacity was taken away from her at the time of the late will, about three weeks later.
46. The burden of persuasion shifted, as stated, to the girls, and I found that they met this burden. I was persuaded by the daughters' arguments that there was no impediment to the deceased's health or mental state to the drafting of the late will, that the deceased was fit to make it.  In the affidavit, the Applicant noted on behalf of the daughters that the deceased passed away about 4 years after the late will was drawn up and that at the time of its drafting she was lucid, despite the fact that she had fallen ill and suffered from cancer, liver disease and kidney disease even before the will was drafted.  The deceased underwent dialysis treatments three times a week and was sometimes hospitalized (paras.  46-47).
47. Daughter noted in her interrogation that "my mother didn't stop walking, only in the last two years has she been a little tired.  That my mother would go somewhere and I was at work, she would order a ride.  Only in the last two years was she limited, but usually she would go out" (Prot.  29.3.23, p.  19, s.  23).  In her interrogation, daughter Z was asked about the deceased's health condition, and replied frankly that the deceased suffered from various diseases that she had diagnosed long before the will was made (p.  29, s.  2), but she was not asked about her condition at the time of making the will in general and her cognitive state in particular.
48. This testimony is consistent with the testimony of the social worker who assisted in the deceased's affairs, that the deceased was significantly restricted due to her health condition only in the two years preceding her death:

"Q.            It is correct to say that she had other diseases: blood pressure, vision.

1. There was also heart failure.
2. Was there also a vision problem?
3. Yes. In the last period of her life.
4. What is it 'Recent period'?
5. The social worker at the day center for the elderly was treated within the framework. But we continued to accompany her with travel assistance and other things.
6. Vision problem - since when? What year?
7. The last two years of her life are what I remember" (Prot. 30 March 2023, p.  20, s.  25).
8. Later, the social worker clarified her words to the court's question:

"I don't get all of people's medical material.  The whole kidneys thing because I had to submit applications so I knew it.  But the issue of vision, I don't know, she had difficulty seeing in recent years.  To the court's question during the years that I used to meet with her not close to the date of her death, I did not notice any difficulty in my vision" (p.  22, para.  6).

50. Regarding her clarity, the social worker testified about the late dates for the wills, "She was completely clear in memory. There was no fault" (p.  20, s.  16).  Moreover, since the pair of wills were signed on adjacent dates, it is also worth noting the testimony of Mr. P., who served as a witness to the early will, and who was under the impression that the deceased was lucid (transcript of May 16, 2024, p.  12, s.  9).
51. In addition, I will refer to the testimony of Anonymous, who handled the deceased's application for insolvency on the dates close to the drafting of the wills, and according to his testimony, he had no indication of a decline in the deceased's cognitive capacity (Prot. 30 January 2025, p.  50, s.  11).
52. I am therefore persuaded that at the time of making the will, or wills, there was no defect in the deceased's ability to discern the nature of the act of the will. Taking into account the burden on the applicants, I am impressed by the testimonies of the daughters, and by the testimony of three objective witnesses - the social worker, the lawyer and the witness to the early will - that at the time of the drafting of the late will, the deceased was clear and competent to understand the nature of the will, and therefore I reject the son's arguments in this context.

The Claim of Unfair Influence

53. Section 30(a) of the Inheritance Law states that "a provision of a will made as a result of rape, threat, unfair influence, subterfuge or fraud is void." Any attempt to influence a testator should not be regarded as an improper act that may lead to the revocation of the will. More than once children or other relatives put pressure on a certain person to prefer them over others.  However, this does not lead to the invalidation of the will.  The impermissible, unfair influence that leads to the invalidation of the will is one that negates the testator's free will, and by virtue of this it is a significant and almost total influence on the testator's actions - the influence "[...] which is not a routine influence that is a daily act, but rather an influence that has an element of unfairness according to our social and moral concepts" (Shohat, Feinberg and Flomin, "The Law of Inheritance and Estate," Sadan, 2014, 124, and the references cited therein).
54. The Supreme Court has set up tests to identify unfair influence and to distinguish it from undue influence. The rule was established in another civil hearing 1516/95 Marom v.  the Attorney General (IsrSC 52(2) 813, 864; hereinafter - the "Marom Rule").  The judgment set up four sub-tests for establishing a "comprehensive and thorough" dependence of the testator on a beneficiary that amounts to the denial of the testator's free will (ibid., 830) - the test of independence; the Assistance Test; The test of the relationship with other persons and the test of the circumstances of making a will.
55. In his summaries, the son summarized his arguments in this context, and I will summarize them below. I will preface by saying that the son finds in the close relationship between the daughters and the deceased, in and of itself, evidence of unfair influence on the part of the daughters.  According to him, in our case, the assistance test is being met, and he learns this from the social worker's testimony that the deceased was dependent on the girls "in everything related to bathing, accompanying treatments, and also food." He also learned from the social worker's testimony that the girls "were recruited to help the deceased and were in daily contact with her" (paras.  80-81 of the summaries).  In order to strengthen his argument, the son further refers to the testimony of applicant No. 2, who according to her would meet the deceased every day and even sleep with her in her home (para.  82).  According to him, Applicant No. 1 also testified that she had a "close relationship" with the deceased, and that she would meet her every day (para.  89).  He also referred to the testimony of the eldest brother, , who testified that the deceased was afraid of the daughters and did not want her to know that the deceased was staying at his home.  The son adds that the deceased's "serious medical condition" made her dependent and easy to exploit by the girls (para.  86).
56. I will begin by saying that the good relationship between the deceased and her daughters, however close and close it may be, does not in itself attest to unfair influence. Accepting the argument will render this ground meaningless and will make it possible to find an unfair influence between any testator who is close to his children or the beneficiaries of his will.  Even if I assume that this close relationship was expressed in the assistance of the daughters to the mother, whether in bathing or in preparing food, this does not necessarily indicate the dependence of the deceased on her daughters.  I do not accept the fact that the girls met the deceased every day, and even twice a day, as evidence of unfair influence and I did not find any substance in these claims.
57. I am also of the opinion that the son attributes to the social worker things that were not said and further attributes a far-reaching interpretation to her words. With regard to the description of the deceased's condition, the social worker referred in her testimony to the period later than the date of the will.  The social worker did not know how to elaborate on the state of affairs in 2016, when the wills were drawn up (Prot.  3.2023, p.  19, para.  27).  In addition, the social worker's response regarding the dependence of a mitzva on others did not relate to the rest, but rather to a general question addressed to her in the following terms:

"Q. It is correct to say that from your acquaintance with a population older than 30 years when a population that is physically weak is dependent on others

1. That's right.
2. In family members.
3. True" (ibid., p. 22, s.  14).
4. Taking into account the burden of proof and persuasion placed on the shoulders of the daughters, I found that they met this burden and I was convinced beyond any doubt that not only were the daughters not involved in any way in the drafting of the late will and did not exert any pressure or influence on the deceased, but that they did not know in real time about the making of the late will, but only after the death of the deceased and after the will was delivered to them by the witness to the will.
5. Applicant No. 1 declared in an affidavit on behalf of the daughters that they learned of the will only after the death of their mother as aforesaid and that the will was given to them by the witness to the will (paragraphs 10, 37, 49). This is what she testified in her interrogation:

"Q. I'm telling you that when you and your sisters knew about the will that your mother made with AnonymousYou put pressure on her to change her will with the discourse.  Anonymous?

1. I said that I didn't know about the first will or the second and that I found out about the first will during the discussions here, how can I answer you about that?
2. How [Called to the will] Did she know about the wills and you didn't know?
3. My mother said [Witness to Will] That there are two wills and she didn't tell us. Another thing is that not everyone who writes a will tells everyone that he is writing a will" (Prot.  29 March 2023, p.  24, s.  24).
4. Daughter Z testified in a similar manner during her interrogation:

"Q.    Have you read your mother's will?

1. Yes, only now, after she passed away.
2. Also the will in the discourse. Anonymous?
3. Yes, we didn't know there was a will.
4. What will did you not know about?
5. We did not know of any of their wills. At the funeral the discourse Anonymous He said there was a will and so did her girlfriend" (p.  31, s.  23; and also p.  33, s.  11; and also p.  34, s.  7).
6. Daughter also testified in a similar manner in her interrogation, as follows:

"Q. [Son] Says that some of the sisters knew about the will that the mother made to me [..] and a bush AnonymousWhat do you think?

1. My mother wouldn't have told us about these things, if she had told one she would have told everyone.
2. Did your mother never tell you that she made a will?
3. No matter how much I criticized her, she didn't tell.
4. [Testimony to the Excrement] Did she tell you that she made a will?
5. [Testimony to the Will] She told us after the funeral that there was a will. Maybe three days after my mother died" (p.  40, s.  15; and also p.  41, s.  1).
6. I will also refer to the testimony of the social worker, in connection with the question of the assistance that the deceased received from her daughters. The social worker testified that the deceased was entitled to third-party assistance from the National Security Council, and was not dependent on daughters, whereas only during the COVID-19 pandemic (about four years after the date the wills were drafted) did she help her daughters:

"Q. As you mentioned, she needs to be accompanied in a dressed bath, is she not entitled to the assistance of a therapist?

1. She was entitled to the Long-Term Care Law
2. Did she get it?
3. Of course
4. Who took care of her?
5. I don't know. Before COVID-19, the caregiver was outside the family, only during the pandemic, the caregiver was from within the family.  Some of the hours she received had passed" (Prot.  30.3.23, p.  23, s.  31).
6. In addition, I do not accept the testimony of the eldest brother as a real source of evidence for the deceased's dependence on her daughters.  With all the weight of his statement, merely that the deceased was dependent on the girls and feared them, I cannot attribute to his testimony reliability and I got the impression that his testimony is not free from his personal position regarding the dispute between the girls and the son.
7. In these circumstances, no test is met with respect to the deceased's relations with others. The deceased was neither isolated nor isolated from the world.  Even if I assume that the testimonies relate to the period relevant to the wills, and this is not the case, apart from her daughters, the deceased was assisted by such a caregiver, and visited a day center for the elderly, where she was active and socially active (see the testimony of a social worker, ibid., p.  19, para.  12).  The close relationship between the deceased and the witness to the test, her close friend, also negates the existence of the test of relationship with others.  Moreover, the eldest son   testified that the deceased used to visit him at his home (transcript of 16 May 2024, p.  26, para.  4), and further noted that the son himself assisted the deceased and "was responsible for her in terms of her conduct" (ibid., ibid.).  Moreover, the son himself testified that his relationship with his mother was good and that he denied any claim of conflict between them.  This does not constitute an allegation of unfair influence, dependence or isolation:

"Q:   Was the relationship between you good?