Family file (Petah Tikva) 62456-02-26 S. S. v. Y. T. et al. - part 2

(1) The statement of claim does not disclose a cause of action;

(...)

(4) Any other reason according to which he believes it is appropriate and correct to delete the claim."

Article 43 states that:

"The court may dismiss a claim at any time due to the existence of a court action, statute of limitations or any other reason according to which it believes it is appropriate and correct to dismiss the claim."

13. In the judgment Civil Appeal 5634/05 Tzukit HaCarmel Projects Ltd.   Micha Tzur General Contracting Company Ltd.  (published in Nevo), questions were discussed that touched on both outright deletion and outright rejection, with the Supreme Court holding as follows:

"Indeed, as the appellants claim, "the rule is that the court will use its power to dismiss a claim in limine...  Only in cases where it is clear that under no circumstances can the plaintiff receive, on the basis of the arguments that substantiate his claim, the relief sought.  The court - when considering this possibility - will act very carefully and will use its authority only in extreme and exceptional cases."

14. 00Quoted from NevoDismissal of a lawsuit in limine is an extreme remedy that the court is careful not to use frequently, since granting this relief ostensibly prevents a plaintiff from bringing his case before the court. Therefore, the courts exercise great caution in motions for summary dismissal, and as a rule, the court will prefer that disputes between the parties be decided on the merits of the matter.  At the same time, this does not mean that the court will not make any use of this remedy at all, except sparingly and in exceptional cases.

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15. Thus, for example, it was determined that in family proceedings there is an increased duty of good faith (see claims after the settlement of litigation 33821-11-17 of January 8, 2018 (published in Nevo)), and in appropriate cases, claims filed in bad faith were dismissed out of hand. It is not for nothing that it was held that the court has the right, and sometimes even the obligation, to dismiss claims in limine, where the filer of the claim acts in bad faith, even at the initiative of the court and even in the early stages of the proceeding (see family file 42896-06-12 of June 13, 2013 (published in Nevo)).
16. I will preface the latter and note that in the present case, this is an exceptional case that justifies the dismissal of the two claims in limine, as will be detailed below:

The first procedure - the absence of rivalry between the parties - yes or no?

17. According to the sister, the lawsuit should be dismissed due to the lack of legal rivalry between her and the brother, since the agreement that the brother seeks to cancel is an agreement between the sister and the mother, it is a contract that establishes a legal relationship between the parties only, and the stranger should not be given grounds to interfere in the agreement. The sister further argues that there is no conflict of interest in our case, since even according to the brother, the right of ownership in the property is subject to the existence of an irrevocable license to live in it.  The sister further argues that contrary to the brother's claim, there are no conflicting interests since he was granted the right to use the property, because the right of use is not a proprietary right and a transaction to grant this right does not constitute a "real estate transaction".  Finally, the sister argues that the rules of estoppel and inhibitions should be applied to the brother, since the brother confirmed in his testimony that he knew about the transfer of the rights, and did not prevent them from being registered with the ILA.
18. On the other hand, according to the brother, the sister repeatedly submits threshold requests and general and unfocused responses of a procedural nature, with the aim of making the hearing cumbersome and delaying, and in an attempt to divert the discussion from the core of the dispute. According to the brother, after he was exposed to the relevant documents, there is a real suspicion that the mother's signature on the gift agreement is not her signature.  The brother further argues that alongside the authority of the guardian, he also has an independent standing right to attack the transfer, since he has been living in the property for about 43 years by virtue of the explicit and irrevocable permission given to him by his parents.  Finally, the brother argues that the rule is that dismissal in limine is an extreme and exceptional remedy, and this is not a case that justifies granting the relief.
19. The absence of rivalry means that there is no direct legal connection between the plaintiff and the defendant, or in simpler terms, the claim was filed not against the right party or not by the party who has the right to demand the relief, in such a way that even if there is a cause of action, it is not directed against the right party.
20. In this case, the brother is in fact petitioning to cancel a gift agreement to which he is not a party. There is no dispute that the gift agreement was signed between the sister and the mother, and therefore there can be no dispute that there is a substantial and procedural lack of rivalry.  The gift agreement was made between the mother, who was the sole owner of the rights in the property, and the sister, and the two are the only parties to the gift agreement.  Basic concepts are that a contract establishes rights and obligations between the parties to it alone.  Since the brother is not a party to the agreement, and there is no dispute about it, then there is no legal rivalry between him and the sister that gives him the status to demand the cancellation of the gift agreement and/or the cancellation of the registration of the rights in the property, according to it.  For this reason alone, there is room to dismiss the claim out of hand - and to dismiss it.
21. It should be said that not only is the gift agreement between the sister and the mother only, and as stated, the brother is not a party to it, the gift agreement was even executed, and was executed, with all that this entails, and not even recently, but about 4 years ago.
22. Even an attempt to claim the cancellation of a gift agreement by virtue of the Contracts Law, on the grounds of oppression, cannot help in this case. Section 18 of the Contracts Law (General Part), 5733-1973 states that "a person who entered into a contract due to the exploitation of the distress of the contractor by the other party or another on his behalf, his mental or physical weakness or lack of experience, and the terms of the contract are unreasonably worse than customary, may cancel the contract."
23. The cause of oppression constitutes a defect in the will and explicitly states that the right to cancel a contract in respect of the cause of oppression is given only to "the person who entered into the contract". This provision of the law grants a relative and personal right of cancellation to a party to the contract only, whose free will has been violated.  As a result, a third party who is a stranger to the agreement does not have the legal standing to intervene in the contractual relationship, is not authorized to raise a claim of oppression on behalf of another, and has no legally acquired right to demand the cancellation of the contract.  And as stated, in our case, the mother not only did not allege oppression, but she also stood before the court and repeatedly claimed, again and again, that she gave the property to the nurse of her own free will, and with a clear intention, which was even explained by her in detail.
24. Thus, there is no rivalry between the parties to the proceeding, and the proceeding should be postponed for this reason.

The second proceeding - is there a cause of action yes or no?

25. According to the nurse, the mother's signature on the enduring power of attorney was made after a medical opinion was given that the mother was competent to sign the power of attorney. Moreover, the sister claims, the mother does not need a guardian even today, the mother made it clear that she opposes guardianship, and the brother himself noted in his pleadings that the mother can still manage day-to-day affairs or express an independent desire in relation to regular family arrangements.  The sister further argues that the family appellant ruled that "before an enduring power of attorney has been activated, it is not possible to order the appointment of a guardian in addition to him, " and this is the case at hand.  According to the sister, in the course of the proceeding, the brother petitioned for a temporary injunction instructing her to refrain from taking any action on the property, and in the hearing that took place in his request, before the Honorable Registrar, to which he demanded that the mother appear for preliminary testimony, the Honorable Registrar ruled that the proper procedure is not the procedure for appointing a guardian, and that this is a "pre-inheritance" dispute and that the court will not lend a hand to this.
26. According to the brother, the sister dispossessed the mother of her assets, taking advantage of the mother, who is in a nursing situation and extreme dependence. According to the brother, the physical and mental dependence on the mother creates fertile ground for the appointment of a guardian, and in view of the sister's conduct, his appointment as an additional guardian should be ordered.  The brother further argues that the case law states that the test for appointing a guardian is not limited to medical or cognitive incapacity.  According to the brother, when there is a concern that a person's will has been harmed due to dependence, pressure or unfair influence, the court is authorized and even obligated to appoint a neutral party in order to protect his interests and property.  The brother further argues that even in the absence of a formal exercise of the power of attorney, the court may appoint an additional guardian if it deems that there is a fear of real harm to his affairs if a guardian is not appointed.
27. Section 33A(a) of the Kashrut Law states that the court shall not appoint a guardian for an adult under section 33(a)(4), unless it deems that all of the following have been met:

"....  (2) The Guardian General has not been deposited with an enduring power of attorney drawn up by the person in respect of matters in respect of which the subscription is requested."

28. Thus, the provisions of the section place a clear and unambiguous normative barrier: where a person has drawn up an enduring power of attorney, the court does not intervene, and therefore for this reason alone, the claim should be dismissed.
29. Beyond that, however, an enduring power of attorney pursuant to Amendment 18 to the Legal Capacity and Guardianship Law, 5726-1965 (hereinafter: the "Kashrut Law") allows each adult to determine in advance who will make decisions for him in the future, in situations in which he will no longer be able to make decisions on his own due to injury, illness or old age. The basic principle of an enduring power of attorney is to respect the free will and autonomy of the person while he is clear and competent, for the purpose of determining who will handle his affairs in the future.  The court tends not to intervene in a person's decision, since such judicial intervention would render the essence of the tool meaningless and make it completely redundant.
30. The purpose of this legal provision is to establish the autonomy of individual will and to respect the free will of man while he is still in health. The legislature expressly denied the authority to create a 'bypass' of appointing a guardian when there is an enduring power of attorney in place.  All the more so when the existing enduring power of attorney has not yet been activated.
31. In our case, once the mother has drawn up an enduring power of attorney and has chosen only the sister as her guardian when necessary, the court should not intervene, change and/or even add a guardian, and agreeing to the relief to which the brother petitions will constitute an intervention, not to say an injury, to the mother's clear wishes.
32. And if this is not enough that the power of attorney was not exercised at all, then the proceeding, at the very least, is ahead of its time, since as long as the power of attorney has not been exercised, it is only a theoretical matter, and as is well known, the court is not required to deal with a theoretical matter (see: Appeal in this matter Petition/Administrative Claim 2211/19 The Association for Civil Rights in Israel v. Mayor of Haifa, Dr.  Einat Kalish Rotem, dated November 11, 2020).
33. Even if the court had accepted the brother's arguments that the court may appoint an additional guardian, for an enduring power of attorney that has not yet been activated, in order to ensure that the appointer's interests are not harmed, an argument that the court does not accept, then, in this case, the petition should be rejected, and why?
34. The enduring power of attorney was accompanied by two medical opinions. The first opinion was prepared by Dr.  Evgeny Miroshnik, an expert in geriatrics and internal medicine, who determined that the mother's cognitive assessment was normal.  The second opinion, by Prof.  Shmuel Fenig, found that the mother's social insight and judgment were correct, and that the mother was competent to make a will.  Thus, the mother was competent to choose the guardian to be appointed in the enduring power of attorney, at the time she signed it, and she chose only the sister.
35. The mother testified before the court, as stated above, and from her testimony it emerges, with due caution, that she is competent. The court does not have medical expertise, but it heard the mother without filters, in authentic testimony, and it seems that even without medical knowledge, it is impossible to doubt the mother's ability and competence even today, to express her position, to explain her actions, and to accept her position that she does not need a guardian and is not interested in appointing a guardian in addition to the one she chose knowingly, when she signed the power of attorney.
36. More than necessary, it should be said that the brother was asked more than once whether he claimed that the mother was incompetent, and his answer was, "I did not claim incompetence, but rather to hang." With all due respect, the court does not recognize this grounds as justifying the appointment of a guardian in general, and the appointment of a guardian in addition to that prescribed in an enduring power of attorney, in particular. Even if the court believes the brother that his goal is to take care of the mother's assets, for her, this cannot be done through the legal proceedings before it.
37. A moment before the conclusion - the court cannot ignore another cause of action that justifies the dismissal of the proceedings, which is the cause of bad faith in the proceedings in the Family Court. And what is this supposed to say?
38. The claim for the appointment of an additional guardian by enduring power of attorney is not the first proceeding initiated by the brother in an almost identical matter, and was preceded by a proceeding for the appointment of a guardian for the mother (hereinafter: the "previous proceeding"). The previous proceeding was deleted and closed, on the grounds that there is an enduring power of attorney, and in fact this proceeding is "the same lady in a change of mantle", and an attempt to circumvent a judicial decision, and this attests to a lack of good faith.
39. In the framework of the second proceeding, the mother testified in the hearing that took place before the Registrar, as stated, in the brother's request for an injunction. Already in the Registrar's decision, after the mother's testimony before her, she noted that "the impression is, with the necessary caution, and without any expertise in the medical field, that Ms. S.  understands the matter and is aware of the matter.  S.  expressed her opinion in a clear and clear voice and answered the court's questions in an orderly, eloquent and coherent manner." Nevertheless, the mother was forced to give additional testimony, also before this panel.  There is no need to elaborate on what this testimony causes to the mother.  This is an 84-year-old woman who repeatedly repeated harsh and painful words before the court, and in tears asked "Why are they doing such a thing to me?....  Is it acceptable to do this to my mother? To bring me to court..." (emphasis added by S.S.).

• An examination of the brother's summaries reveals that arguments were also made that are not about the proceedings in the heading, but about the mother's will, and it seems that their purpose is to confuse the creators, to flood with details that are not important, all in order not to deal with the main thing.

1. The lack of good faith is also expressed in the brother's choice to conduct proceedings over his mother's head, while she is "alive and kicking", as a poet and active, instead of letting her lead her life, in her third age, quietly, and calmly, and to respect her wishes, even if, according to him, the mother acted unjustly, and all her assets were transferred to the sister and not distributed equally. It is suggested that the brother listen to the mother's words and her pain, and find a way to rehabilitate the relationship and overcome the crisis.  Due to the importance of the mother's words, both from the family and legal aspects, they will be brought here, as follows:
2. As noted, the two proceedings in the heading will be postponed and the cases will be closed.
3. Expenses - In accordance with the new regulations and in view of the result I have reached, taking into account the stage of the proceeding, the number of hearings held and the number of applications submitted, I order that the brother be charged with the nurse's expenses in the sum of ILS 15, 000.
4. Publication with the omission of identifying information is permitted.

Granted today, August 04, 2026, in the absence of the parties.