VIII. If we follow D's affidavit"The power of attorney given to the plaintiff, as well as the will, are invalid.
- The burden of persuasion to prove that this is not a gift is on the plaintiff who "One who takes out his friend".
Discussion and Decision
- Indeed, defendant 2 was present in the courtroom during the plaintiff's testimony. Ostensibly, this situation could lead to a reduction in the weight of his testimony. However, the defendant did not point to the coordination of versions or the contamination of the version (which was brought in the affidavit of the main witness to begin with). Therefore, the defendant's argument in this matter is rejected.
Normative outline -
- The case law distinguishes between a bank account that was opened fromthe outset as a joint account by the parties, and an account that was opened from the outset by only one party, to whichanother owner was later added. In this regard, there is a presumption that funds held in a joint account, which was opened in the first place as a joint account, are jointly ownedby the partners in the account, unless proven otherwise [LA 6939/15 Anonymous v. Anonymous [Nevo] (December 7,2015); LFA 5710/09 Anonymous v. Anonymous [Nevo] (August 10,2009)]. On the other hand, with regard to the ownership of the funds deposited in the account prior to the drawingof another partner, the mere fact that it was added to the account does not necessarily indicate the giving of a gift, and it is necessary to examine what was the intention underlying its addition to the account: "In making a gift, it is the intention of the parties that is accompanied by the acts that is decisive" [Civil Appeal 453/73 Estate of the Late Ephraim Vasner v. Gutman, IsrSC 29(1) 313 (1974); See also Civil Appeal 679/76 Sali v. Estate of the Late Karl Schafer, IsrSC 32(2) 785,794 (1978)]. And as written in Prof. Ben-Uliel's article, "Joint Bank Account - A Critical Evaluation", Mishpatim 10 (1940), 439, at p. 444: "When the court is aware of the fact that in a joint account of A and B (spouses or strangers) the fund is the exclusive property of A, the assumption must be accepted that the account was opened for the convenience of the sole owner of the fund. The proof of a common interest in granting a benefit to B will depend on the special circumstances of each case and the application of other rules of law."
- The partner who claims that his addition to the account as an additional owner was done for the purpose of granting a gift immediately, must prove the existence of two conditions: one - proof of the intention to give a gift; and the second - proof of the timing of the gift: before death and not afterwards. For this purpose, he must bring weighty external evidence [LA 4739/15 Anonymous v. Anonymous, P. Yisskat 8-9 [Nevo] (December 30,2015)]. And as other municipal applications were held in 268/81 Baram v. Gerti, IsrSC 38 (2) 45,52 (1984): "It is preferable that this intention be proved by written documents, but in the absence of a document, such a factual finding can also be established on the basis of the deceased's proven statements, evidence of a special relationship between the deceased and the partner in the account, and other circumstantial proofs."
- To be precise, this is an increased burden of proof [Family Appeal (Haifa) 53836-11-14 S. v. L.S., para. 15 [Nevo] (December 15,2013)]. And as it was held inLA 6939/15 Anonymous v. Anonymous, paragraph 15 and the references there [Nevo] (December 7,2015): "Conclusive proof is required as to the discretion of a certain person to give his partner half of the funds as a gift. ... In such a case, the discretion must be clearly reflected from the evidence material. In order for it to be possible to determine that a certain person did indeed wish to give a gift to his partner, the court has a duty to examine the evidence in a strict and rigorous manner, and it is of crucial importance that the will of the giver is expressed in the clearest manner and according to unequivocal evidence."
From the general to the individual -
- We are dealing with an account that was opened in the name of the parents in the first place, which was managed for a number of years before the deceased added the defendant as an additional owner in it (the plaintiff - p. 12, para. 16, paragraph 31 of the affidavit; the defendant - p. 170, paras. 2 and 17). On November 9,2016, the defendant was added as an additional partner to the account, in accordance with the "Adding a Partner to the Client" form, which includes a longevity clause in a joint account ( 17,25-24 N/2).
- A dispute arose between the parties as to the significance of the defendant's inclusion as a partner in the account.
According to the plaintiff and defendant 2, the defendant's addition to the account was intended to make it easier for the parents to manage their affairs, but there was no intention to give him a gift, nor was it even possible to do so in view of the deceased's deteriorating cognitive state: "The purpose of the registration was to prevent the freezing of the funds in the event of my mother's death, so that it would be possible to assist the late Y., my father, in managing his financial affairs." "The late Y. was not fit to carry out basic actions in daily life, let alone to carry out legal actions such as the giving of a gift of millions of shekels in order to 'correct the alleged and denied deprivation' of years" (Plaintiff - paragraphs 16 and 35 of the affidavit, pp. 36, paras. 21-25; Defendant 2 - paragraphs 14 and 21 of the affidavit, p. 64, paras. 8-9, p. 66, para. 25).