Once the basic elements of a will in witnesses have been defined in accordance with section 20 of the Law, and since the requirement for the signature of witnesses has ceased to be a 'fundamental component' of such a will, the obvious conclusion is that it is now possible, using the provision of section 25 of the Inheritance Law in its new form, to execute a written will under section 20 even in the absence of the testator's signature and in the absence of the signature of the witnesses. Therefore, from what will the court learn, 'and without a doubt', that such a will reflects the free and true will of the testator? from the witnesses. not only (external evidence), but mainly" (Estate Case 11632/99 Anonymous v. Anonymous, April 25, 2004; Also, Shochet , p. 88).
- It follows from this that while the existence of two witnesses and the "bringing" of the will before them is a fundamental element in the absence of which the will should not be executed, even if the court is convinced that it was signed by the testator of his own free will. On the other hand, the signature of the witnesses on the will is not a fundamental component, and the court was given the discretion to uphold it even in the absence of the signature of one of the witnesses, as in our case. The purpose of the presence of the witnesses, to be evidence of the testator's awareness of the validity of his actions and his knowledge that the document grants his estate after his death, can also be fulfilled on the witness page before the court. This is how the Honorable Deputy President A. Matza:
"It was found that when it is convinced beyond a reasonable doubt that a will in the presence of witnesses 'reflects the free and true will of the testator', the court is entitled - by a reasoned decision - to execute the will even if there was a defect or deficiency in its execution with regard to the fulfillment of one of the following requirements, which according to section 20 of the law must be fulfilled in the preparation of a will in the presence of witnesses: the will did not specify a date, or it was not signed by the testator or by the witnesses or any of them. However, the court is not permitted to execute a will in which there is a defect or deficiency if 'the basic elements of the will have not been fulfilled' (my emphasis - A.M.), that in the case of a will in witnesses it is that 'the will is in writing and the testator brought it before two witnesses'. The new wording of section 25 therefore clearly indicates that even though the legislature saw to ease the formal requirements for making a will in witnesses, it was careful to clarify that a document in which the three basic elements were not fulfilled - a testator, a writing and two witnesses - is not a will, and even if the court is convinced, beyond a doubt, that the document reflects the free and true will of the document holder, the court is not entitled to uphold it. Indeed, the requirement that the testator bring his will before two witnesses is a threshold requirement. Its practical significance is that the court must find that the testator presented his will to two witnesses, and those - who saw the document and heard the testator's words - declare (or testify) before the court that the document whose execution was requested is the will that the testator brought before them. Only when it is proven before it in the affidavits (or testimonies) of the two witnesses that the testator brought his will before them, and that the document requested to be fulfilled is the will that the testator brought before the two witnesses as aforesaid, the court will be entitled (provided that the other conditions for this are met) to execute a will in the presence of witnesses made by the testator, even though the testator did not sign his will in front of the two witnesses (or did not sign it at all), and even though the witnesses (or any of them) did not approve the testator's signature with their signatures on the face of the will" (my emphases, Additional Civil Hearing 7818/00 Aharon v. Aharoni, IsrSC 59(6) 653, p. 674; and also Family Appeal (Center) 44175-10-16 R. B v. A. M, dated November 30, 2017).
- I will note that the majority opinion in the judgment in additional civil hearing 7818/00 Aharon v. Aharoni above, quoted by the Honorable Justice A. Arbel, saw room for "the application of a broad approach that sees the entrance gate to section 25(a) as sufficiently broad to contain various defects that occurred in the will". According to her, "In accordance with this interpretive approach, it is not necessary that at the time of making a will in witnesses, let alone at the time of its annulment, two witnesses will be present. The court will be able to examine the veracity of the document placed before it even though it was prepared in the presence of a single witness, and if it determines that it is genuine, then as a rule it must give effect to the legal action in question - making a will or revocating it" (p. 705).
- In accordance with this interpretive approach, the Honorable Justice Arbel viewed the law's requirement for the existence of two witnesses as a condition for the exercise of the court's authority and the execution of the will as a stringent requirement, and there is room to quote from her words:
"Conditioning the validity of a will on two witnesses is a very stringent requirement, if we examine it against the rules and principles that apply in the various branches of law. The most prominent example of this is the sufficiency of the testimony of one witness in order to decide a civil proceeding or a criminal proceeding. The accepted principled approach even in the most sensitive areas is that, as a rule, there is no need to set such a strict evidentiary standard in order to investigate the truth [...] It is therefore impossible not to wonder what justification is in the court's authority to send a person behind bars for the rest of his life on the basis of the testimony of a single witness, and at the same time denying the authority of that court to recognize the validity of a will in witnesses or the validity of the revocation of such a will. When there was only one witness to this action. The court has the professional tools to examine the evidence before it and to determine findings of fact even according to one witness when his testimony can be relied upon or on the basis of some other evidentiary basis, and I do not see why this would be different when we are dealing with the annulment of a will that had only one witness" (ibid., at p. 711).