On the other hand, according to the defendant, the significance of his inclusion in the account was the immediate granting of the funds to him, when the deceased fully understood the significance of his addition and the granting of the funds: "My late mother emphasized to me that this was an immediate gift whose purpose was to compensate me, if only slightly, for my discrimination in comparison to my brothers (A. and K.) over the years", "My late father understood very well what he signed, he wanted it with all his might, and this after the matter was made clear to him, as well as to my mother and to me, by the bank representative" (defendant - paragraphs 4 and 6 of the affidavit, p. 99, paras. 24,26, paras. 100, paras. 4-5, p. 107, paras. 25-26, p. 108, paras. 5-6).
- In our case, the defendant has the burden of proving the existence of discretion on the part of the original account holder to grant him the funds in the account as a gift immediately. This was also determined in a decision of March 7,2021, in which a motion to reverse the order in which the order in which the evidence was reversed, while emphasizing that the order of the trial determines the course of the trial (the procedural aspect), while the burden of persuasion determines the fate of the decision in the trial - the party in charge must lift it (the substantive aspect) (ibid., paragraphs 34-36).
- I will preface the beginning by saying that after examining the arguments of the parties and the evidence material, I have reached the conclusion that the claim should be accepted; I will detail my reasoning below.
First condition: No intention to give a gift has been proven.
- An examination of the evidence placed before me leads to the conclusion that it was the will and intention of the parents, in adding the defendant as a partner in the account, that they would not have granted him ownership of the funds in the account. My conclusion rests on the totality of the reasons detailed below.
- First, the will and conduct of the deceased are consistent with the plaintiff's claim that the defendant's addition to the joint account was done for the convenience of the deceased as he was facing a lack of independence due to his health condition.
- In this case, the account contained money - derived from various incomes (rent, businesses), while the parents managed their financial affairs: "As long as my father was competent, they managed things together. When my father ceased to be competent, she managed, from the time he ceased to be competent" (Plaintiff - pp. 17-20; Defendant - p. 170, paras. 23-25, p. 171, paras. 3-7, p. 173, paras. 22-24; defendant 2 - p. 62, paras. 5-6);
There was a practical need to insert a partner into the account that was created due to the deterioration of the father's condition and the need to ensure the activity in the account for his benefit - the funds in the account were used for the needs of the parents (the defendant - p. 102, paras. 10-12, pp. 8-18,171); The father was born in -----, at the age of 82 at the relevant time, and suffered from Alzheimer's disease. The father's cognitive state is deteriorating, and indeed in August 2012 the father was unable to give informed consent for medical treatment and needed to appoint a guardian for his physical affairs (Order to Appoint a Temporary Guardian of August 23,2012, Family Case 154/12; [Nevo], p. 26, P/7). In other words, he was prima facie unable to act independently in the account; the mother, who was born in -----, at the age of 77 at the relevant time, is herself ill (paragraph 22 of the defendant's summaries) (died two months after the addition to the account) (the defendant - pp. 189,20); The mother operated in the account as long as she was able to do so (the defendant - p. 172, paras. 22), and sought to ensure that it would be possible to continue operating in it even afterwards: "I estimate that at that time all she had in mind was how to take care of the continuity and care of my father as soon as something happened to her" (the plaintiff - p. 40, paras. 17-20), "the conversation revolved around whether something was happening to me, that it would be possible to take care of my father and take care of the accounts" (defendant 2 - p. 62, paras. 14-16). This leads to the conclusion that a need arose because of the concern for the mother's ability to continue to manage the parents' affairs;