Estate File (Haifa) 51710-09-20 Anonymous v. Anonymous - part 7

A:     Yes.

Q:     All the time?

A:     All the time" (Transcript of 27 May 2024, p.  13, s.  17).

65. I was therefore persuaded by the testimony of three of the girls, and by the social worker, that they did not know in real time about the making of the late will, which is not the result of the influence of the daughters, let alone an unfair influence. The girls proved that the girls' assistance to the artist was not exclusive and that the deceased received the help of a third party as aforesaid, and she also received assistance from a day center for the elderly.  These circumstances are far from indicative of the deceased's "comprehensive and thorough dependence" on others.  The deceased was not isolated in any way.  The son lived next door to her and testified that his relationship with her was good.  The eldest son testified that his mother used to visit him at his home.  It should be noted that even with regard to the early will held by the son, the deceased acted alone, spoke with the sheikh and met him at the home of her relatives, and there is no indication that she needed any assistance in this regard.  These determinations do not correspond to the existence of unfair influence, but rather to proper relations with her family members and a close relationship with her daughters.  For these reasons, I reject the son's arguments in this context.

00Involvement in the drafting of the will

0

66. This ground of nullity was born in the son's summaries, and he concludes that it exists on the basis of the testimony of the witness to the will. According to her, she drove with the deceased in the car of the elderly club to the home of a certain person, Mr. [...] Asher lives near the sheikh's house, and from there the two walked a short distance to the sheikh's house (Prot.  30 March 2023, p.  28, paras.  28 ff.).  According to the son, in the building in which Mr. Adam So-and-so lives, Applicant No. 1 also lives.  In addition, the deceased's medical condition did not allow her to walk a distance of 200-300 meters to the sheikh's home.  Hence, the obvious conclusion according to the son's position, in the "balance of probabilities" according to him, is that the applicant No. 1 drove the deceased to the Sheikh's house (paragraphs 92-96 of the son's summaries).
67. The son's argument for the existence of this cause of nullity is an expansion of the prima façade that first arose in the son's summaries as aforesaid, and nevertheless I found it appropriate to discuss it for the sake of the completeness of the decision. I also find that the conclusion reached by the son is not sufficiently substantiated.
68. This ground is stated in section 35 of the Inheritance Law:

"A provision of a will, other than an oral will, which entitles the person who drafted it or witnessed its making or otherwise took part in its drafting, and a provision of a will that entitles the spouse of one of the above, is void."

69. The rule is that this ground will be interpreted narrowly and will be dedicated to exceptional cases in which there was real involvement in the act of the will on the part of the beneficiary, to the point of denying the testator's free will. According to the Supreme Court:

"The result of this order is difficult.  When the circumstances described in section 35 are met, a conclusive presumption arises that a prohibited action was taken against the testator and that this action impaired his free will [...] The logic of the provision of section 35 is that the persons listed in it are likely to influence the testator unlawfully [...] In view of the difficult result resulting from the provision of the section, the Supreme Court ruled in a series of rulings that it should be interpreted in a narrow manner and in a precise manner" (Civil Appeal 7506/95 Schwartz v.  Beit Ulpana Beit Aharon Ve-Israel, IsrSC 55(2) 215).

70. I will begin by saying that it has been proven to me that the daughters did not know about the making of the late will in real time as aforesaid, and therefore even this cause cannot exist in our case. The son's claim that it was the applicant No. 1 who drove the deceased and the witness to the Sheikh's home is speculative, apparently, and is not supported by evidence or testimony.  In our case, the testament witness denied the claim that Applicant No. 1 was visited at her home prior to their visit to the Sheikh, or that the former drove them to his home.  She confirmed that Applicant No. 1 was indeed visited after the meeting with the Sheikh, without telling Applicant No. 1 about the making of the will.
71. The testimony to the will in her interrogation is as follows:

"Q. Who took them from the house of [A certain person] To the house of the bush, because it is a distance...

1. [...] No one took us between the houses. It's a short distance and I held her hand.
2. It doesn't make sense because the distance between the houses is at least 200-300 meters and there is an ascent to reach it. According to your description that she couldn't walk, how could you have walked that distance?
3. The ascent is not difficult. A slight ascent. 
4. It's true that the house of [A certain person] S Graves' And her husband who is out here live there, right?
5. Yes.
6. And it could be that-Sat She took them in the car to the sheikh
7. Nope. We walked alone.
8. Do you know that[The Rest] She had leg problems, right?
9. That's right. Legs, hands, and everything.  In its entirety.
10. So if this is the situation where she can barely stand on her feet, then it is unlikely that she will walk 200-300 meters uphill. You're not young either.
11. [...] To the court's question as to whether the distance between the house of [A certain person] That's where you stabbed the committee of the discourse, it's like where you sit in the witness stand and up to the wall behind the judge, I reply that it's a little more. I don't know how much more.
12. Who took you back... I know the place personally.  And maybe I'll address that later.

Who took you back after you finished with the sheikh?

1. A neighbor passed by on the way and asked if we wanted to go back to the house and we said we wanted to visit S.' And then bring it back there. The neighbor asked if they wanted to go home and they answered that they wanted to visit S.' We crossed the road and went in, no one took us.
2. That is, from the bush' Did you go with the same neighbor or on foot?
3. On foot. It's a slight decline.
4. that you went to' Did you tell us that you were with the sheikh and made a will?
5. Nope.
6. The deceased didn't tell her.
7. The deceased told her that we were somewhere and did not elaborate" (Prot. March 30, 2023, p.  28, s.  33).
8. This testimony is consistent with the testimony of Applicant No. 1, as follows:

"Q. On the same day that your mother made the will with AnonymousHave you met her?

1. It may be, but she didn't say anything to me. But I always accompany her.  She didn't say anything to me. 
2. How did you know it was the same day you met her?
3. [...] Because you asked me... I must have seen her that day. 
4. How did you know it was the same day?
5. Since the wedding of [Son] In 7/2014 me and my sister Z' We always visited my mother's, probably one of the days. But I don't know if it was on the day the will was signed.
6. Did you see your mother before she went to the conversation or after she came back from the bush?
7. I don't know when she went or back, I don't even know when she went. She didn't tell us at all.  She didn't talk about the will at all. 
8. Why did she come to your house before she went to the bush Anonymous?
9. I don't know about that day at all, I didn't know she went to the conversation [Anonymous]She didn't say.
10. What is the distance of your house from the house of the shrub?
11. I don't know how far it is, but there's no distance, in the same neighborhood.
12. How close?
13. I don't know how to estimate in meters. About three hundred meters" (Prot.  29 May 2023, p.  18, s.  34).
14. In our case, I found the testimony of the witness and Applicant No. 1 to be detailed, consistent and reliable, and I find no reason to doubt their testimony. Nevertheless, I am prepared to assume, in favor of the son and without making a finding in this context, that Applicant No. 1 did indeed drive the deceased and the witness to the very entrance of the Sheikh's house.  This was not to help the son.
15. The son's claim of the involvement of Applicant No. 1 relates only to her transportation to the Sheikh's home, and even if the claim is true, this does not constitute involvement that leads to the annulment of the will. As stated above, the involvement must get to the root of the matter to the point of denying the deceased's wishes.  It was not claimed that Applicant No. 1 was involved in her application to the Sheikh or in the content of the will in any way.  The case law is consistent in its position that the deceased's transportation in itself does not constitute involvement and does not reach the threshold of severity required for this ground to exist.  According to the Supreme Court:

"It was held that the fact that the beneficiary of the will brought the testator to the attorney who in the past handled her own affairs and even assisted him with various details that he needed for the purpose of the will does not amount to taking part in the drafting of the will (Justice Beinisch, Other Municipal Applications 2500/93 , supra)" (Civil Appeal 7506/95 Schwartz v.  Beit Ulpana Beit Aharon and Israel, supra, paragraph 15 of the judgment).

75. More than necessary, even more direct involvement, such as contacting the beneficiary and bearing the attorney's fees, does not necessarily constitute taking part in the drafting of the will (Civil Appeal 760/86 Guri Rosen v. Lydia Shulman, IsrSC 34(3) 586).
76. I therefore found that the daughters had proved, as stated, that they did not know about the making of the late will until after the death of the deceased, and that this cause of action could not stand, and I was convinced further from the testimony of the applicant and the witness to the will that the claim should be dismissed on its merits as well. Even if it had been proven before me that the Applicant drove the deceased to the Sheikh's house, this would not have constituted involvement in the drafting of the will.  For these reasons, I reject the son's claim of involvement in the drafting of the will, even on the merits of the matter and if it was proven.

The Formal Defect - The Presence of Two Witnesses

77. All of what has been said so far bases my determination that the son's arguments regarding the existence of the various grounds of nullity due to defects in the deceased's will, as well as his claim that the deceased's signature was forged, should be rejected, and there is no reason to revoke the will by virtue of these grounds. Below I will address the son's claim that there was a formal defect in the later will that cannot be repaired where the will lacks the witness's signature on the will.  According to the son, on the substantive level, I do not have a will before me in front of witnesses, and the requirements of the Inheritance Law are not met.
78. The late will, in which the deceased allegedly sold her apartment to girls, was drafted by an anonymous respected dissident, and was written in his own handwriting. The will bears the signature of the deceased and the signature of the anonymous dissident, but not the witness's signature on the will.  Before I discuss the son's arguments, I will lay down the legal framework for the discussion.
79. A will by witnesses is regulated in section 20 of the Inheritance Law, as follows:

"A will in the presence of witnesses shall be in writing, shall be indicated on the date and signed by the testator's hand in the presence of two witnesses after he has declared to them that this is his will; The witnesses shall attest at the same time with their signature on the face of the will that the testator declared and signed as aforesaid."

80. There is therefore no mistake in the law's requirement that a condition for the validity of the will is that both witnesses must sign the will, as confirmation that the deceased declared to them that this was his will. However, this is not the end of the story, since section 25 of the Inheritance Law grants the court discretion to execute a will that has a defect or deficiency, to the extent that the "basic elements" are fulfilled in it, and to the extent that the court is convinced that the deceased signed the will of his own free will.  This is how section 25(a) of the Inheritance Law is written:

"If the basic elements of the will have been fulfilled, and if the Registrar of Inheritance Affairs or the Court, as the case may be, have no doubt that it reflects the free and true will of the testator, he may, in a reasoned decision, uphold it if there is even a defect in any of the details or in any of the proceedings specified in sections 19, 20, 22 or 23 or in the capacity of the witnesses, or in the absence of any of the details or in any of the proceedings as aforesaid."