(Amendment No. 18) 57832005.
25.(a)Fulfilled The Basic Components of a WillIf 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 competence of the witnesses, or in the absence of any of the details or in any of the proceedings as aforesaid.
(b) In this section, the "basic elements of a will" are:
.....
(1)
(2)
(3)
(4) In an oral will As stated in section 23 - the will was made by the testator
himself in front of two witnesses who hear his tongue while he was lying down from evil
or when he saw himself, in circumstances justifying it, in the face of death..."
- The basic components of each type of wills are detailed in section 25(b) of the Inheritance Law. Subsection 25(b)(4) of the Inheritance Law applies to an oral will, which states that the will was made by the testator himself as a first condition, a second condition in front of two witnesses who hear him, in circumstances that justify it, and the testator was facing death. These are basic conditions without which there is no order to fulfill the will. In other words, the existence of certain elements in section 23 of the Inheritance Law is necessary, and the absence of those elements cannot be "cured" by means of section 25 of the Inheritance Law. Such is certainly the requirement that the mitzva be a person who is lying down from evil or who sees himself facing death. This circumstance is not a "proceeding", which may be flawed. It constitutes a prerequisite, that only by giving it is possible to create an oral will. The absence of this figure cannot be cured.
- The person who claims the existence of a will that is made orally, must be convinced by strong evidence that it must be executed, while the court must be careful and carefully examine whether it is indeed possible to rely on witnesses testifying to a will made in a criminal appeal (see: Other Municipal Applications 138/64 Feldman (Schwartz) v. Trifman (2) at p. 420; Civil Appeal 9200/99 Yehudit Hanuka v. Attorney General, IsrSC 56 (3) 801, p. 807).
- The term "lying down" was not defined in the law, and it was absorbed from Jewish law. The Rambam's definition of the concept of lying down from evil is "a sick person whose entire body is exhausted and his strength is so weak as a result of illness that he is unable to walk on his leg in the market, and he falls on the bed - he is called lying down." This definition was adopted in other municipal rulings 252/70 Rosenthal v. Tomshevsky, IsrSC 25 (1) 448. See also Shochat, Inheritance and Estate Law, Seventh Edition, p.
- The interpretation given by the case law to the concept of "lying down" is a restrictive interpretation that distinguishes between a person who is sick, even in a serious illness - who is able to walk and function, and when necessary - to make a written will, whether by handwriting or by signing a will in the presence of two witnesses, and a person who is lying on his deathbed, with an illness from which he can no longer recover, is not functioning, and is unable to handle his affairs, including drafting a written will. See in this regard in Civil Appeal (Jerusalem) 185/96 Cohen v. Estate of the late Rahamim Cohen et al.
From the General to the Individual - Discussion and Decision:
- I will preface by saying that after a thorough examination of all the material in the file, and hearing the interrogations and testimonies of the witnesses, I determine that the basic conditions required for the execution of a will of a deceased person were not met, and therefore the applicant's request to be rejected is lawful.
- I will note and emphasize, at this stage, that even in the other conditions set forth in the provisions of the Law and in the case law with regard to the drafting of a will of a deceased person, there were many flaws that are major and fundamental, and which cannot be cured. My conclusion is that the Applicant has not been able to meet the burden required to prove the claim that the deceased made a will of the deceased, as will be explained and detailed in detail below.
- Most of the evidentiary basis laid before me is based on the medical documentation in the case of the deceased from the hospital in ***, from the geriatric hospital, the Maccabi Health Fund and the National Insurance Institute. Another key piece of evidence is the opinion of the court-appointed medical expert, as well as the testimonies of the witnesses, Mr. N.K. and Mr. M.K. On behalf of the Applicant.
- In the case before me, it was claimed by the Applicant that the deceased made an oral will and bequeathed his estate on 6/12/21, 11/12/21 and 13/12/21 before Mr. N.K. According to the claim, the deceased intended to register his apartment in the name of the deceased. The Applicant also claimed that on October 30, 2021, together with Mr. N.K. She visited the deceased in the hospital *** and told him that he intended to bequeath the apartment he owned to her.
- The main question that the court must examine in the framework of the decision is the capacity of the deceased to make a will, as well as whether the elements set forth in the provisions and the case law for the existence of a will of a deceased person were met. The central andmost relevant issue in this case is the mental and cognitive competence of the deceased at the times alleged to have drawn up the will. As stated, the court appointed the expert, an expert in the field of psychogeriatrics, to examine this issue.
- The expert submitted an opinion in which he determined that "after examining Mr. W. My conclusion is that at the time of drafting the wills on December 6, 11 and 13, 2021, the deceased was not in a state of mental capacity to understand the nature of a will or the nature of any other legal document."
- In his cross-examination of July 20, 2025, the expert rejected the Applicant's claim regarding partial fitness or flashing of clarity, and explained that the deceased's condition did not allow for any level of cognitive functioning that could be considered legally competent. In his testimony as well, the expert reiterated that the deceased was constantly documented in the medical documents that his consciousness was vague, and that he was in a poor state all the time and was defined as terminal ill. The expert's testimony was consistent, well-founded and clear, and relied on the medical documents placed before him, including the documents from the long-term care hospital in ***.
See the expert's testimony on page 9 of the transcript of the hearing of July 20, 2025
- The Applicant's claim that the expert did not examine the deceased himself does not detract from the validity of the opinion, since a retrospective opinion, based on continuous institutional medical documentation, is an accepted and recognized procedure in forensic psychiatry. In addition, the Applicant's claim that the expert should have examined the affidavits of the witnesses is irrelevant since we are dealing with factual and legal claims. The expert also noted in his testimony that the witnesses' claims are legal and not medical claims, and that he is supposed to relate to the medical documents. The expert testified that the documentation in this case was detailed enough to allow for determinations that the deceased was mentally incompetent to make a will.
See the expert's testimony on page 7 of the transcript of the hearing of July 20, 2025.
- The Applicant's argument that the expert's determination is based on conjectures was also rejected. When the expert was asked in the interrogation whether his determination was based on conjectures, the expert answered:
"No, then let's fix it, let's make sure we're talking about the same thing. A hypothesis is when I don't have any document in front of me, when I think what I think... As soon as I rely on documents, I understand what's in the medical document, and it's the best I have."