See: American Restatement, Article 8.5 (emphasis added).
- This approach, as stated, is very similar to the requirement of good faith and reasonableness of attack, which is established in Israeli law with respect to a non-assault dismissal clause.
- This model can also be adopted in the matter of non-claim clauses, in accordance with an incidental statement by Justice Strasberg-Cohen in the Yona case. However, the operation of this model may be contrary to the will of the testator when the testator was precise, as far as he was concerned, in all the determinations he made in the will and sought to prevent any litigation in connection with it - even when it is a litigation that has justification.
- To illustrate this, consider the case of a testator who believes that a plot that he inherited from his parents belongs to him, and his wife has no share in this lot. He is aware of the possibility that his wife will raise a claim regarding her entitlement to a specific sharing of the lot (see and compare: Additional Hearing High Court of Justice8537/18 Anonymous v. The Great Rabbinical Court of Jerusalem, paragraphs 12 and 23 of the [Nevo] judgment (June 24,2021); Civil Appeal Authority 8672/00 Abu Rumi v. Abu Rumi, IsrSC 56(6) 175 (2002)), the testator chooses to include in his will, along with the list of assets, some of which were intended to be transferred to his wife, the non-claim stipulation. In this case, if the testator's wife sues the estate in order to exercise her right to a specific share in the plot, respecting the testator's wishes will obligate the court to order that the wife will not be entitled to receive any property bequeathed to her by the testator - even if her claim was filed in good faith and was found to be justified. This scenario and others like it raise a difficulty that requires a solution. This solution will be provided by me later in my remarks.
The Unqualified Attacker Model
- Another possible model that can be adopted with respect to non-claim clauses is the unqualified validity model. This model was adopted by Justice Shochat in the Y.D. and by the majority justices in the judgment that is the subject of the application for leave to appeal in this case. This model gives full validity to non-claim clauses without being subject to any formal requirements or plans and without any connection to the conduct of the winner according to the will (see: Rabin and Rhodes, at p. 598). This model interprets a will that contains a non-claim clause as a kind of offer for the beneficiaries to choose between receiving the property that the testator intended for each of them, without question, and filing a claim that detracts from the mass of the estate. The winners according to the will are entitled to receive the first part of this offer and receive what the testator ordered them without attacking the mass of the estate. Alternatively, each of them may try his luck in court and attack the mass of the estate, but in this case their entitlement under the provisions of the will will expire on its own.
- On the face of it, this model seems to be just and correct in that it realizes the freedom of the will and the word of the testator who passed away. However, in order for this to happen, the testator is supposed to know the status of his assets at the time the will was made. If the testator assumes, inadvertently, that a certain asset, which he chose to bequeath to the beneficiary A, is his, when in fact that certain asset belongs to the beneficiary B, and as such does not constitute part of the mass of the estate, then the claim of the beneficiary of B, who rightly claims, ownership of that property, may lead to the denial of his entitlement under the will against the will of the testator. Therefore, the model of unqualified validity is a model that is valid only when it comes to a will that is free of errors as to the mass of the estate. Given an error regarding the mass of the estate, this model will not achieve its purpose, which is, as stated, the fulfillment of the testator's will.
The test of the interpretation of the will: