Discussion and Decision
Normative outline -
- Section 30(b) of the Inheritance Law, 5725-1965 (hereinafter also - the Inheritance Law) states that: "A provision of a will that was made due to an error - if it is possible to clearly determine what the testator would have instructed in his will had it not been for the error, the court shall accordingly amend the words of the will; if it is not possible to do so, the provision of the will is null and void." Section 31 of the law states that: "One year has passed from the day on which the rape, threat, unfair influence or deception ceased to act on the testator, or from the day the testator became aware of the fraud or mistake, and the testator was able to revoke the will and did not do so, the same defect will no longer be sufficient to cancel or amend the provision of the will."
- The mistake in section 30(b) is aimed at a "deep-rooted and "fundamental" error relating to the very considerations that led the testator to make the will - an error of fact, law or motive [Family Appeal (Center) 47916-03-23A. v. K.B.A.M. [Nevo] (March 10,2024); Family Appeal (Tel Aviv) 42530-11-23 Adv. Eyal Bar-Lev v. A.L. et al. [Nevo] (April 24,2024); Shohat, Feinberg, Plomin, Inheritance and Estate Law (Seventh Edition) at p. 129].
- Section 30(b) of the Law establishes an arrangement that allows the court to amend the testator's will on his behalf, where he is convinced that if it were not for the mistake, the testator would have determined that this is his will [Estate Case (Jerusalem) 45861/08 Anonymous v. Anonymous [Nevo] (July 29,2010)].
- The possibility of correcting an error is contingent on the fact that it is possible to determine "clearly" what the testator would have instructed in his will had it not been for the error: "To determine clearly means to determine in a manner that removes any reasonable doubt as to the testator's intention (see: Shiloh, at pp. 276-276; Shaul Shohat, Defects in Wills 265-266 and 276 (Second Edition, 2001) (hereinafter: Shohat); and Barak, at pp. 360-362). A positive answer to this question will enable the correction of the error. On the other hand, if this question is answered in the negative, we will have to declare the provisions of the late will cancelled - except for the provision of section 1 of the late will, which cancels the deceased's early will" [LA 1857/24 Anonymous v. Anonymous, paragraph 65 [Nevo] (December 2,2024)].
- The burden of proving the existence of an error is on the person who claims its existence. This is a heavy burden when the objector is required to prove the mistake as well as the causal connection between the provision of the will and the testator's error, and to prove what the testator's will would have been had it not been for his mistake [Estate Case (Nazareth) 7835-02-12 Estate of the late R.R. , Deceased v. R. Paragraphs 46,48 and references there [Nevo] (December 8,2013); Estate Case (Haifa) 69673-03-22 R.N. v. A.R.A., para. 25 [Nevo] (May 29,2025); C.A. (Haifa) 547/07 Anonymous v. Anonymous, paragraphs 15-16 and references there [Nevo] (September 9,2007); LA 4990/12 Zilverson v. Zilverson [Nevo] (November 13,2012); Prof. S. Shiloh, Commentary on the Inheritance Law, 5725-1965, Volume 1 (1992), at p. 276].
- On the basis of the above, I will turn to examine the circumstances of the case before me.
From the law to the subject -