Estate File (Nazareth) 55446-04-22 The late L.W. v. the Custodian General, Haifa and Northern District, Government Ministries - part 5

See his testimony on page 12 of the minutes of the hearing of July 20, 2025 , lines 22-27). 

42. The expert unequivocally determined that the deceased suffered from advanced dementia, significant cognitive decline, lack of orientation in time and place, and loss of judgment, in a way that left no doubt that he was incapable of understanding the meaning of his actions or expressing an independent will. The medical documentation from the long-term care hospital in *** repeatedly documented situations of extreme apathy, lack of interest in the environment, and inability to communicate verbally.  In other documents, it was even explicitly stated that the deceased was unable to express his wishes or make his own judgment.
43. According to the provisions of section 26 of the Inheritance Law, a will that has been proven that the testator was not competent to make it is essentially void. In view of the expert's unequivocal opinion, which was supported by objective medical documents and was not concealed, I determine that the deceased lacked the legal capacity to make a will at the relevant times, and therefore the Applicant's claim that the deceased made an oral will before his death should not be accepted.
44. Beyond the expert's unequivocal determination, the Applicant was unable to meet the formal conditions for a will to be executed, even if it had been determined that the deceased was competent to make a will, the Applicant's request could not have been granted, since the application for the execution of the alleged will suffers from additional material defects, as will be detailed below.
45. The two witnesses were not present together at the time of the testament, and their testimonies contradict each other regarding the dates, places and content of the statements. The hearing of the two witnesses shows that both of them were present before the deceased on different dates and not on the same date.  The requirement of the provisions of section 23(a) of the Inheritance Law is not met.  The two witnesses did not hear the deceased's words at the same time, and this is a material demand that cannot be cured, and we are not dealing with a technical defect, but rather with a material demand whose absence leads to the invalidation of the will.  Notwithstanding the above, there is an approach in case law according to which the requirement of hearing the words of the testator at the same time by the two witnesses can be ignored and they can be said orally in front of two witnesses on two different occasions, but there is an obligation that the two opportunities complement each other into one opportunity, into one clear and certain statement that will testify to the finality of opinion on behalf of the testator.  However, this case does not exist either.
46. There were contradictions in the testimonies of the witnesses. The two witnesses did not state clearly and clearly what the deceased's words were, things that were supposed to be in the form of a will, and not just statements.  In addition, the first and fundamental condition of hearing the words of the testator in front of two witnesses together was not met.  Each of the witnesses describes a different date, a different place, different circumstances and a different wording as it emerges from their affidavits of the main witness and from their testimony before the court.
47. Even the memorandum of understanding, as aforesaid, constitutes, according to the Applicant, the will of the deceased, a will of the deceased, which does not meet all the requirements set forth in the provisions of the law and in case law. The date of signing the memorandum of understanding is February 17, 2022.  In paragraph 4 of the memorandum it is recorded that on December 6, 2021, the Applicant, together with Mr. M.K.  The deceased was visited in a Saudi hospital and that on this occasion he asked that his estate be transferred to the deceased after his death.  The additional witness, Mr. N.K.  He stated in paragraph 5 of the memorandum that he had known the deceased for many years, and that on December 11, 2021, he visited the deceased in the Saudi hospital in ****, and that the deceased felt that he was approaching his death, and asked that his estate be transferred to the deceased's neighbor whom he knew.  It should be noted that in the memorandum there is no statement or statement on behalf of the second witness, Mr. M.K.  The memorandum is signed by the deceased and the two witnesses.
48. Although the memorandum is signed by two witnesses, who claim that they sat with the deceased and heard from him what he wanted to command after his death, as he was lying ill, there were a number of material flaws and many contradictions in it. The deceased, who, as aforesaid, signed an affidavit of the main witness, stated in the affidavit that the deceased told the two witnesses that he intended to register his apartment in her name.  Despite this, the issue of the apartment owned by the deceased had no trace of it either in the memorandum or in the affidavits of the main witness submitted on behalf of the two witnesses.  The deceased and also the witness, Mr. N.K.  It is noted in the memorandum that the deceased wanted to bequeath her his entire estate and there is no reference whatsoever to the apartment.  The two witnesses also stated in affidavits that the deceased wanted to leave his estate for the deceased and that there was no trace of the apartment.
49. It should also be noted and emphasized that the hearing of the witnesses revealed that the memorandum of understanding was prepared by Adv. Rubin, counsel for the deceased and the applicant. It also emerged that the two witnesses were not present at the same time at the signing of the memorandum of understanding, and each signed on a different occasion.  The wording of the memorandum also does not include direct statements by the deceased, and it is formulated in a general manner and without any detail.  The memorandum of understanding does not include explicit statements of the testator, and thus does not meet the requirements of the law and the provisions set forth in the case law.
50. The provision of section 23 of the Inheritance Law requires that a memorandum be drawn up by two witnesses, who allegedly heard the deceased. In accordance with the provisions of the section, the testator's words will be recorded in a memorandum that will be deposited with the Registrar of Inheritance, as soon as possible.  This is intended to ensure that the words of the mitzva will be formulated and preserved, in a tangible way, while they are still fresh in the memory of the witnesses and will be handed over to an authorized authority.  In the case before me, the alleged will was drawn up on several dates and not on one date, namely 6/12/21, 11/12/21 and 13/12/21, with the memorandum of understanding drawn up only on 17/2/22.
51. The Applicant has not been able to give any satisfactory explanation regarding the delay in drafting the memorandum of understanding. In addition, no evidence was brought on behalf of the Applicant that the memorandum of understanding was deposited with the Registrar of Inheritance Affairs, despite the claim that the memorandum of understanding was indeed deposited.  The memorandum of understanding was presented only when the application for the execution of the alleged will was filed, and even if the court had accepted the applicant's argument that the memorandum of understanding was deposited on March 9, 2022, it would not have been properly clarified why the memorandum was deposited only on that date and not close to the existence of the alleged will.  The failure to draw up the memorandum of understanding close to the alleged will and the failure to deposit the memorandum with the Registrar of Inheritance Affairs close to the drafting of the will constitute a material defect that cannot be cured in accordance with the provisions of section 25 of the Inheritance Law.
52. The purpose of the memorandum of understanding is to document, as soon as possible and close to the existence of the alleged will, the testator's words in an accurate, reliable and complete manner, in order to ascertain whether we are indeed dealing with an accurate, authentic and reliable will, which reflects the will of the testator and proves that there was indeed discretion. In the case before me, I was not persuaded that there was a deliberate and absolute decision on the part of the deceased to make the will, but in the present case, doubt arises as to the veracity of the alleged will, since it has not been proved, at the required level and in accordance with the case law, that the deceased has indeed decided to bequeath his entire estate to the deceased.  It was also proven that due to medical problems, and in particular cognitive problems, the deceased was unable to make a will or understand its nature as determined by the expert.
53. In addition to all of the above, the testimonies of the two witnesses were also unreliable, inconsistent, and even contradictory, and do not correspond to the medical documents regarding the deceased's condition during the relevant period, and are inconsistent with the unequivocal determination of the medical expert.
54. The witness, Mr. N.K. He testified that he was a good friend of the deceased and was in constant contact with him during his work as a security guard at the supermarket in ***.  Despite the above, the witness stated that he stopped working at the supermarket in 2016, i.e., 5 years before the alleged will was drafted.  The witness could not explain what contact he had with the deceased since he finished his work as a supermarket insurer and how the relationship between him and the deceased was maintained, and his answers on this matter were not clear and contained many contradictions.

See his testimony on page 2 of the transcript of the hearing of July 2, 2025. 

55. The witness also added that he would have called the deceased by phone, but when he was asked about the phone calls and was asked to present the deceased's number and name on the mobile phone, he could not do so and did not present any conversation or recording of the conversation. In addition, the witness testified that he had trips with the deceased and visited him many times at his home and had photographs, claims that had no mention of them in the affidavit of the main witness submitted on his behalf, and in addition, the witness was unable to present a single photograph with the deceased.  The description he gave to the deceased's home also did not match the photographs submitted to the file from the deceased's apartment.
56. The witness also testified that he visited the deceased on October 30, 2021, when the deceased was in a hospital in *** and at that time the deceased told him that he intended to bequeath his estate to the deceased. The witness also stated that the deceased drank water that he had brought him and had no medical problem, but from the medical documents presented it appears that during the relevant period the deceased received food through a tube, which indicates that the deceased could not drink orally, and this is in complete contradiction to what the witness claimed.  The witness also did not know, despite the continuous and good relationship he had with the deceased, about the deceased's previous hospitalization in *** that was for 10 days following a severe fall he had.

See his testimony on page 17 of the minutes of the hearing of July 2, 2025.

57. The testimony of the other witness, Mr. M.K. It was full of contradictions and his testimony was not direct, coherent and consistent.  This witness did not know the deceased at all and he accompanied the deceased when she visited the deceased and asked him to join her.  This witness did not even give anything in the memorandum that was drawn up and he only signed it and not even together with the other witness, Mr. N.K.  This witness came to the deceased by chance and only in light of the deceased's request.  This witness also did not give clear and precise what the deceased had told him, but only that he wanted his estate to pass to the deceased neighbor.  It should also be noted that the memorandum mentions his visit only on December 6, 2021, and there was no mention of the additional visit he made on December 13, 2021.  The deceased herself in the affidavit of the main witness submitted on her behalf does not state that the witness visited the deceased on December 13, 2021, but only records that he made a will on December 13, 2021.
58. In light of all of the above, the court rules that the applicant did not meet the heavy burden of proof imposed on her to execute a will of a deceased person. The main and decisive conclusion is that the deceased was mentally and cognitively incompetent to make a will at the relevant times, based on the professional and unequivocal opinion of the medical expert, which was not concealed.  In addition, the alleged will suffers from many material and formal defects as detailed above, these defects, together with the contradictions in the testimonies, prevent the court from being convinced of the truth of the will, and therefore the obvious and binding result in the circumstances of the case is the rejection of the applicant's application for a probate order, since the material defects cannot be cured by virtue of section 25 of the Inheritance Law.
59. The Applicant's argument that the Respondent was represented by his son and that a power of attorney was not submitted to the file as required and lawful, which allows the Attorney General to represent him, has not gone unnoticed. I found this argument of the Applicant to be rejected because the Respondent's counsel submitted a power of attorney to the file to which a letter from the Respondent's son was attached in which it was stated that the Respondent was requesting the ISA to represent him in the proceeding, and in addition, the Respondent's Counsel produced a power of attorney signed by the Respondent himself.  In addition, the respondent's son was present at the evidentiary hearing and confirmed that the representation of the respondent's counsel, and more than necessary, the respondent's absence from the proceeding did not cause the applicant any damage, since no request was filed on her behalf to compel him to appear for the hearings, nor any request for his interrogation.

Conclusion:

60. Therefore, and in light of all of the above, I order the rejection of the Applicant's application for an order to probate the will of a deceased person, and accept the Respondent's objection to the probate of the will.
61. Since I have rejected the application to execute the deceased's will, I accept the respondent's request for an inheritance order for the deceased's estate.
62. An inheritance order will be given separately.
63. In light of the result I have reached, I order the Applicant to pay the Respondent legal expenses and attorney's fees in the total amount of ILS 20, 000. The amount will be paid within 30 days from today, and if it is not paid within the time period set out above, the amount will bear linkage differentials and interest as per law from the date of this judgment until the full payment is actually made.
64. The Secretariat will forward this judgment to the parties and close the two files in the heading.

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