"If there is a fundamental principle - if you will: an overarching principle - in inheritance law, it is nothing but the principle that instructs us that a person, every person, acquires freedom to dictate what will be done in his estate, and the principle derived from it, according to which the living are commanded to fulfill the words and will of the deceased. The freedom to command and the mitzva to fulfill the will of the deceased - both sides of the same coin - are both derived from human dignity and from personal autonomy derived from dignity" (see: Civil Appeal 4660/94 Attorney General v. Lishitzky, IsrSC 55(1) 88,115 (1999)).
- As has already been clarified, a stipulation of dismissal is a provision in the will that removes the beneficiary from his inheritance according to the will (see: Defects in Wills, at p. 325). This is whenever the beneficiary chooses to take legal action in relation to the will, in contrast to the specific restriction ordered by the testator - whether the limitation relates to the objection to the very validity of the will on claims that arise by virtue of the Inheritance Law (non-aggression clauses); whether the limitation relates to claims in relation to the mass of the estate that are based on causes external to the inheritance laws (non-claim clauses); or whether these two limitations apply together.
- How can the existing tension be reconciled between the need to enforce the non-claim dismissal clauses, in order to fulfill the will of the testator-maker, and the various difficulties that such clauses may raise?
This discussion will now be held.
- The Absence of Validity Model
One possible model that can be adopted with respect to disposal clauses in general, and non-claim clauses in particular, is the invalidity model. This model contains a sweeping rule according to which disposal clauses of all types are invalid and void (see: Rabin and Rhodes, at p. 597). This model was adopted, for example, in a law in the state of Florida in the United States, which states that disposal clauses are essentially unenforceable"A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable" ( Stat. § 732.517 (2023)) (See also the California law that limits the application of non-claim clauses to express clauses only: "A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that application" (Cal. Prob. Code § 21311(a)-(b) (West 2025)). - Another important example is found in the recent judgment rendered by the Court of Appeals (Superior Court) of the State of New York: Carlson v. Colangelo, 44 N.Y.3d 116,124 (2025) (hereinafter: Carlson). This judgment states: "In addressing wills, we have explained that while in terrorem clauses are enforceable, they are not favored and [must be] strictly construed."
- In our districts, too, the scholar Michael Corinaldi expressed reservations about the non-claim type of disposal clauses, noting that "a non-claim clause conflicts with the interest of the heirs, to the point of interfering with their proprietary rights, and therefore it should not be validated" (see: New Trends in Wills Law, at pp. 270-271).
- I am of the opinion that the model of invalidity is not worthy of adoption because it nullifies the will of the testator in part even when it is a will that has not been damaged by any defect. Consider the case of an heir who validates a will granting him part of the testator's assets, when the will contains a non-invasive dismissal clause. In this case, the court will not be entitled to deprive the recalcitrant heir of his share of the estate even after it is convinced that that heir had no reason to attack the will. This result makes the will of the testator a plaster. This is also the case when the deceased's will, which entitles the recalcitrant heir to part of the estate, contains a dismissal clause of the type of non-claim. If it turns out that the heir's claim, which sought to detract from the mass of the estate, was an empty claim, leaving the heir on the list of beneficiaries according to the will would be directly contrary to the will of the testator.
- Even in terms of the law that we have, the Supreme Court's ruling did not explicitly distinguish between non-assault clauses and non-claim clauses, and held that dismissal clauses do not contradict public policy in a priori manner. Thus, in the Engelman case, the non-assault clause was validated, and in the Yona case, the non-claim clause was validated.
- Therefore, the starting point for the hearing of the application for leave to appeal is that the various disposal clauses are held to have binding legal effect.
The Conditional Operating Model
- In the context of non-assault clauses, our case law adopted, as stated, the conditional activation model. Within the framework of this model, the operation of the dismissal clause is subject to the conduct of the beneficiary, who turns to the courts and raises claims against the will itself. If the beneficiary has reasonable grounds and is acting in good faith, the right of access to the courts, as part of public policy, overrides the testator's desire to prevent a proceeding against the will (see: Rabin and Rhodes, at pp. 598,608-609). As stated, the application of the "good faith and reasonableness test" in the case of non-assault clauses serves as a tool in the hands of the court, which, at the end of the day, is intended to ensure the freedom of the will and the fulfillment of the testator's true will. When we are dealing with a non-assault clause, the claims of the winners that are blocked by stipulation are claims regarding the very validity of the will (such as the claims that the testator was unfit to make the will or that unfair influence was exerted on him, which fall within the scope of sections 26 and 30 ofthe Inheritance Law). Such arguments are based on the desire to ascertain the true will of the deceased. The basis of such objection arguments is not an independent right of the winners, since they have no vested right to inherit anything from the estate of the deceased (see: Civil Appeal 119/89 Turner v. Turner, IsrSC 45(2) 81, para. 5 (1991) (hereinafter: the Turner case); Civil Appeal 1579/20 Engel v. Tel Aviv Assessor, para. 28 [Nevo] (August 18,2021)). The guarantee of the winners' right of access to the courts in relation to non-assault clauses - when they make claims regarding the validity of the will - is not intended to serve as a tool in exercising their personal rights as such, but rather as a means of clarifying the testator's true will and realizing it. Therefore, it was held in the Engelman case that "proper public policy must allow such arguments to be raised precisely for reasons of respecting the will of the testator" (see: ibid., at paragraph 6 of Justice Barak's judgment).
- Similarly, in most states of the United States, the approach was adopted, which allows the heir by means of a will to prevail over a stipulation of both types when there is a significant probability based on evidence that a legal proceeding that validates the stipulation in good faith will prevail. This approach is summarized in the American statement as follows:
"A no-contest clause, also called an in terrorem clause, is enforceable unless probable cause existed for instituting the proceeding. A no-contest clause typically provides for the rescission of any benefit to a devisee, beneficiary, or donee who challenges the validity of the document, or of a term of the document. […] Probable cause exists when, at the time of instituting the proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful. A factor that bears on the existence of probable cause is whether the beneficiary relied upon the advice of independent legal counsel sought in good faith after a full disclosure of the facts".