In our case, as emerges from the defendant's interrogation, his attitude toward the father's fitness was context-dependent and even changed in accordance with the need that was revealed to him in the proceeding. The defendant did not point to actual knowledge or an objective basis for his determinations regarding the father's competence, but testified that he relied on ")l)my feeling at that moment" (p. 123, paras. 16-18).
The transition from a clear and certain factual determination in the affidavit to the expression of a hypothesis and a personal feeling in the interrogation, and not to actual knowledge of the father's cognitive state and his understanding of the meaning of the signature, illustrates the weakening of the defendant's version and the lack of certainty underlying it. Therefore, the weight that must be attributed to his assessment of the father's condition is limited and even negligible.
- Third, the defendant's testimony as to the reason for his addition to the account is based on the bank documents is the only testimony of a litigant: "Q: As far as you are concerned, the bank documents are the light and the innocence in the file? A: I have no other proof. Q: We don't have my mother, we don't have my father, as you say - 'I have no other proof, I only have the bank documents'? A: Yes" (p. 95, paras. 9-13). In such a situation, in view of the increased burden that lies with the person claiming to have the account granted, his testimony cannot be satisfied as the only evidence for the correctness of his version. However, the defendant did not bring additional evidence; I will elaborate.
- The defendant claimed in his testimony that the bank clerk, Mrs. A.F., was present at the deceased's apartment when the documents were signed, witnessed the parents' intention to give him a gift, was directly impressed by the father's cognitive state, and explained the significance to the parents: "Q: And she hears what Mother tells you? A: That's right. .." We want to give you a gift, the bill." .. I say that my father at the time understood what he was doing, he even, ... He held my hand and said to me, "I'm very happy with what we've done" (p. 106, s. 16-p. 107, s. 2,26-23), "Q: Was the bank clerk a witness not only to the intention but also to Dad's competence? A: I guess so" (p. 108, paras. 13-15), "I imagine that if my father had not been fit she would not have continued the process" (p. 107, paras. 19-20), "Q: And did you write in your affidavit that she explained the meanings? A: That's right... I think Orna explained in general terms and then my mother told me I am giving you a gift, this way and that" (p. 192, paras. 21-26).
The defendant agreed that the bank clerk was an objective, neutral witness who played a "substantial" role (p. 107, s. 7, p. 193, s. 5); The defendant also agreed that apart from the bank documents, there was no other evidence to testify to the gift: "Q: (Q) Your main evidence... Is it actually the account documents? A: That's right. . . Q: And you don't have any other objective evidence about a recording of a mother, about a mother's WhatsApp? A: Not an email, an external witness who can testify to this? A: Only a representative of the bank" (p. 177, paras. 10-22). In light of the above, a defendant would have been expected to summon the bank clerk to testify, but the witness was not summoned, without a satisfactory explanation for this avoidance (p. 192, paras. 20).
- The defendant also claimed that his mother wanted to transfer "additional assets" to him in 2013 (P/14, p. 112, paras. 3-7), ")f) offered me to receive the store in Ramat Gan, to transfer it in my name. .. She gave me an $80,000 bond for my business, which I needed that, ... and at some point she even told me - keep it for you. I refused to accept it in both cases" (p. 111, paras. 9-15), and the testament preparer is aware of this: "She also told me at the time that my parents tried, thought, considered, to transfer the store to me" (p. 111, paras. 19-21). In light of the above, the defendant would have been expected to summon the testator to testify, whose testimony might have shed light on the claim of discrimination, but the witness was not summoned, without any explanation (p. 112, s. 26, p. 113, s. 1; proc. March 22,2020, p. 8, s. 19-20). The defendant's refusal to do so raises a question mark, especially when the will prepared by her in 2012 states that the store had already been given to him: "The office... given to me, which is currently registered in a different appeal, Y.A. will be transferred and managed in its entirety to our son, Y." (Clause 5.3.2 P/2), and he even testified, "Until 2010 I was in the store. ... and from 1997 or 1998 they stopped taking rent from me" (p. 113, paras. 14,20).
- The defendant also testified that he told H., his wife, in real time, about the transfer of the account money to him from his parents (p. 179, paras. 25-26, p. 202, paras. 14-15), as well as to his accountant (p. 191, paras. 25). These testimonies are also prima facie relevant in the matter of a "gift" that the defendant allegedly received. However, the defendant did not summon his wife to testify, without a satisfactory explanation for his refusal to do so: "What do you think my wife would have told you otherwise? " (p. 203, paras. 13-14).
- Thus, the defendant refrained from summoning a number of witnesses to testify who, according to him, could have corroborated his version as to the circumstances of his addition to the account, to the parents' intention to give him the money in the account, as well as to the father's competence to understand the significance of the legal action and to give his informed consent to it. The defendant's refusal to bring these key witnesses to testify is in accordance with his duty [Civil Appeal 2275/90 Lima Israel Chemical Industries Ltd. Rosenberg, IsrSC 47 (2) 1993 (May 20,1993)].
- Finally, according to the defendant, the motive for adding him to the account was compensation for his deprivation in relation to his brothers, while the brothers' objection to the transfer of the money to him constituted, according to him, an objection to the parents' wishes: "and especially that of our late mother, who decided to somewhat balance the portions received by A. and K. over the years" (defendant - paragraphs 4,20 of the affidavit, paras. 100, paras. 4-5). However, the evidence is inconsistent with the existence of Abar.
- There is no dispute that parents have the right to give unlimited gifts throughout their lives, while the giving does not have to be equal: "Q: Can every parent give what he wants? A: What he wants. Q: And sometimes it is according to the needs of each and every person? A: Right... Q: Isn't there any logic in saying that it has to be in equal parts? A: Nothing, there is nothing" (defendant - p. 178; plaintiff - p. 32, s. 26, defendant 2 - p. 64, s. 15, p. 65, s. 25).
In this case, the parties testified that when the deceased wanted to give aids or a gift, they did so in an unambiguous manner (defendant 2 - p. 66, s. 1, p. 90, s. 23-26, p. 93, s. 18, p. 97, s. 1; defendant - p. 158, s. 9; pp. 6,8 n/1; P/22); the defendant did not know about the scope of the gifts his brothers received (p. 164, paras. 5-11; paragraph 54 of the defendant's summary); the defendant was unable to prove discrimination: the defendant received a shop (paragraph 5.3.2 P/2) as well as assistance in financing the construction of his house, according to him, in the value of: "ILS 200,000-300,000, perhaps. I appreciate it, I don't remember" and when he was presented with receipts amounting to ILS 600,000 just for the skeleton, he claimed: "Some of the money that my father paid he received from me... I have no proof of that... And here we are already at almost ILS 900,000" (p. 158, paras. 15,18, p. 159, s. 4,13, p. 160, s. 14, p. 161, s. 12; P/22; P/23; P/40); The plaintiff received 13% shares in the company "as consideration and not as a gift", according to him, in the value of ILS 1.5-1.8 million (the plaintiff - p. 46, paras. 20,24, p. 48, s. 11, p. 55, paras. 4-7), on the contrary, the defendant himself attached a letter dated March 8,2003, in which the mother writes: "Regarding the distribution of the shares, A. received 13% of the shares in exchange for his initiative and the conduct of the stock exchange" (p. 7 N/1). Defendant 2 received funds for the purchase of a house and another part of a house abroad (p. 91, paras. 9-12,14), which he claims is worth approximately ILS 4 million (p. 91, s. 21, p. 92, s. 26), and it has not been proven that defendant 2 also received an account abroad containing millions of shekels (Barclays/Jersey) (defendant - p. 201, s. 21). On the contrary, the defendant raised contradictory factual claims in this regard, despite the fact that the bank documents in his possession were not fully attached (p. 24, s. 25, p. 25, s. 3, p. 88, s. 17). He once claimed that the funds abroad were part of the estate ("an account abroad managed by respondent No. 2, in which huge sums of money belonging to the estate are deposited, the exact amount of which is not known" - Section 9 Application for the Appointment of a Temporary Estate Administrator, Estate Case 42114-12-20 [Nevo]; Clause 10 Application for the Appointment of a Permanent Estate Administrator Estate File 27028-04-22), once tried to create symmetry between the overseas account and the union account and the company's shares, despite the plaintiff refusing to confirm that the overseas account was granted to defendant 2 and that the shares were also granted to him, and despite the fact that defendant 2 denied that he was involved in managing the parents' accounts abroad, did not hold funds for the parents (Pro. March 22,2020, p. 2, paras. 21,26,29, p. 13, paras. 18-24; the plaintiff - p. 27, paras. 15-20; defendant 2 - p. 71, s. 14, p. 75, s. 20-23); The defendant testified that he had been "silent" all these years in view of the economic deprivation from which he allegedly suffered from his parents (when it seems that his actual behavior was the exact opposite - p. 149, paras. 15-18), and further testified that the dispute between him and his parents was not economic but stemmed from: "breach of promises that have almost nothing to do with money" (p. 150, paras. 22-23): "But I did not have any kind of demand. I did not come and demanded, in quotation marks, for my insult. I went on with my life" (p. 100, s. 14-16), on the contrary, he even rejected gifts from his parents (p. 111, s. 14-15).