Family Appeal Request 3758-05-26 Anonymous vs. Anonymous - part 12

Is the non-claim clause an offer to the winner or, perhaps, an error in the will?

81. As I will show now, the correct test with respect to dismissal clauses of the type of non-claim is the interpretation test. This test presents the following question: Is the non-claim clause that was set out in the will within the scope of the deceased's offer to the beneficiary, which states that the winner will waive the right of claim in his possession in relation to the property that is the subject of the dispute and in return will receive his share of the testator's estate as he was ordered in the will (this, even when it is a good-hearted and completely justified claim)? A non-claim clause will be considered such a proposal only if there is no error in the will, i.e., only when the testator knew the status of his assets and was aware of the claims and possible claims in relation to it on the part of the beneficiaries.  In the absence of such awareness, the court must follow in the footsteps of Justice Shochat in the Y.D.   In the absence of such awareness, the court must determine that the deceased erred in determining what he determined in the non-claim clause (see and compare: Pinchas Shifman, "Does the Doctrine of Choice Apply to the Law of Wills?" 13 Mishpat Studies 97-93 (1988-1989); The Turner case, at p. 87).
82. In the first situation, when there is no error in the will, the testator's declared desire to prevent litigation between his heirs regarding the mass of the estate must in any case be given priority status. If we determine otherwise, we find ourselves nullifying the will of the testator and enriching one heir at the expense of another - in contravention of the overarching principle of freedom of command.  In the second situation, when it is clear that the testator erred in defining the mass of the estate that will be to be distributed among his heirs, it is that the testator's will is impaired - and his defective will, as it is, should not be fulfilled in any case.
83. Thus, from the perspective of the factual reality, there are two possible situations. First, the testator intended to offer the creditor an offer whereby the winner would waive the rights claims he has in relation to the property that is the subject of the dispute, and in return he would receive his share of the testator's estate as he was instructed to do in the will.  Second, the testator erred in relation to the scope of his property.  At the same time, from the perspective of the legal reality, there is a third situation in which there is doubt regarding the decision between the two aforementioned situations.
84. The question of whether this is a proposal or whether it was a mistake by the testator is a factual and interpretive question. The answer to this question depends, in essence, on the level of detail of the will and the stipulation of dismissal in particular, as well as on the circumstances of the case external to the will, which may testify to the testator's intentions.
85. The court that proceeds to decide the fate of a non-claim dismissal clause is therefore required to classify it into one of three possible situations:

• It is possible to determine unequivocally, or, at least, according to the balance of probabilities, that the provisions of the will were made due to an error (hereinafter: the category of error).
• It can be determined unequivocally, or, at least, according to the balance of probabilities, that the testator intended to offer the winners a proposal (hereinafter: the category of the offer).
• It is not possible to determine clearly whether the testator intended to make an offer to his heirs, and therefore it is possible that this is a mistake in the will. In other words, the scales - on which the will and other relevant evidence are placed - remain hostile with respect to the category of offer, on the one hand, and the category of mistake, on the other (hereinafter: the category: the category of doubt-offer).

86. If the stipulation of dismissal falls within the category of error, it is clear that the laws of error should be applied to the will (see: section 30(b) ofthe Inheritance Law). In this framework, as was recently determined in the majority opinion, contrary to my own position, the revocation of the will in its entirety should be avoided as much as possible in order to fulfill the presumed will of the testator - the desire that the testator would have formed if he had known of his mistake (see: LA 1857/24 Anonymous v. Anonymous, paragraphs 5-18 of the judgment of Justice D. Mintz [Nevo] (December 2,2024) (hereinafter: LA 1857/24 [Nevo]])).  In the absence of the possibility of determining this will according to the balance of probabilities or ordering the execution of the will, in all matters relating to the division of the estate's assets, approximate (cy pres), there will be no choice but to cancel the will and the division of the estate in accordance with the rules of inheritance according to the law (as stated in paragraphs 70-79 of judgment B  1857/24 [Nevo]).  Cases that fall into this category therefore apply the laws that apply to an error in a will, and there is no point in expanding on them beyond what has already been said.
87. When a dismissal clause falls within the category of the offer, in my opinion, it should be enforced without any subject to the "good faith and reasonableness test" - as was the way of Justice Shochat in the Y.D. In these circumstances, any property claim by a winner will activate the stipulation against him and he will be removed from his share of the estate, in accordance with the testator's proven will.
88. On the other hand, if a dismissal stipulation falls into the category of offer-offer, it will be respected only subject to the "good faith and reasonableness test" - the same test that was established by Justice Barak in the Engelman case in the context of non-assault dismissal clauses, and which was adopted in the incidental statement of Justice Strasberg-Cohen in the Yona case, in the context of dismissal clauses of the non-claim type. In any such case, a beneficiary who files a reasonable claim against the mass of the estate in good faith will continue to enjoy both the property he claimed, if his claim is successful, and his share in the estate.
89. I will explain my position.

Offer Category

90. Think of a case in which the deceased instructed in his will as follows:
91. I command 100% of the company's shares X The records in my name are divided equally for my three children.
    I bequeath a million shekels from my private bank account to my wife.
    C.  Even if any of the winners has a prima facie cause of action for rights to my property, as described above, I order that any of the winners who initiates legal proceedings in order to obtain these rights will be dispossessed of his share of the estate according to this will.

Suppose that the widow of the deceased files a property claim claiming that 50% of the shares in the company X, which are registered in the name of the deceased, belong to it by virtue of the laws of spousal partnership.

91. I am of the opinion that in such cases, the dismissal clause should be enforced without reservation. In the example I presented, the woman will be removed from her share according to the will and will not receive the ILS 1 million bequeathed to her by the deceased (whether she succeeds or fails to prove her property claim in relation to shares within the framework of laws that deal with the sharing of assets between spouses).  The will in the example is drafted explicitly enough, so that it can be understood from it that the testator's intention was to make an offer to the beneficiaries.  At the very least, it can be understood from the will that the testator did not make a mistake regarding the assets of the estate.  The language of the dismissal clause in this case teaches that the testator, although he did not recognize the rights of the beneficiaries in the property that according to him belonged only to him, took into account the possibility that any of the beneficiaries had such rights, and presented them with the choice between enforcing their rights as aforesaid and receiving assets from his estate in accordance with what was stated in the will.
92. In cases that fall into the category of the offer, we are in fact dealing with a conditional inheritance, and more precisely - an inheritance that is conditional on a terminating condition (see above in paragraphs 5-7 of my opinion). According to this condition, if the beneficiary insists on his property rights and attacks the mass of the estate, rightly or wrongly, he will lose his share according to the will.  In this situation, and only in it, the winner has a free choice "to be satisfied with what was granted to him in the will or to receive rights to which he is entitled from the estate" (see: the trial judgment, in paragraph 7 of the judgment of Justice Shilo); and since the right to choose is in the hands of the beneficiary, who has no vested right to receive anything or half of the thing from the testator, his right of access to the courts is not impaired in any way.  In these circumstances, there is no justification for allowing the beneficiary to file a property claim that seeks to detract from the assets of the estate, as the testator saw them, without the dismissal clause being enforced against him (for more on the possibility of placing an offer ("a forced election") by means of a disposition clause in the will, see the position of the California Law Amendment Commission, which dealt with this issue and wrote in its report as follows: "A no contest clause can be used to create a forced election; the beneficiary is then forced to choose between taking the gift offered under the estate plan or forfeiting that gift in order to assert an independent legal right such as a creditor claim or a claim of a community property interest" (California Law Revision Commission, Recommendation: Revision of No Contest Clause Statute, 37 Cal.   Revision Comm'n Reports 359,389 (2007) (hereinafter: CLRC)).

Supplier-Offer Category

93. Think of a will that is worded like this:
94. I command 100% of the company's shares X The records in my name are divided equally for my three children.
    I bequeath a million shekels from my private bank account to my wife.
    C.  I order that any of the beneficiaries who initiates legal proceedings, of any kind, in relation to the will or the estate - will be dispossessed of his share in the estate according to the will.

Suppose that this time, too, the widow of the deceased files a property lawsuit claiming that 50% of the shares of the company X, which are registered in the name of the deceased, belong to her by virtue of the laws of marital partnership.  Let us also assume that the Family Court, which heard the case, ruled that the dismissal clause set forth in section C of the will is a non-claim clause; and also ruled that the property claim contradicts the description of the estate's assets in the will.

94. When the will is drafted in this way or similar to it, it cannot be clearly understood from it that the testator's intention was to make an offer to the beneficiaries - that is: the deceased wrote what he wrote while he was aware of the possibility that his wife would have a marital right to share in the shares registered in his name - or, perhaps, this is a mistake of the deceased in the sense that he was convinced that all the shares in Company X were his alone. These are two equivalent interpretations, since, in contrast to the previous example, in this example the deceased did not provide any indication that he recognized the existence of a claim of interest in his wife in relation to half of his shares in the company.  If the deceased had been aware of the claim of this right, which may have succeeded, he might have chosen to bequeath to his children only his own share of the company (50%) or to divide his estate in some other way; and it is also possible that he would not have sought to dispossess his wife of the sum of money he bequeathed her from his estate in the event that she asked for her share of the company's shares.
95. Such cases fall within the category of doubt-offer (or, on the other side of the coin: "doubt-error"). Such cases cannot be solved by means of an interpretive rule that prefers an interpretation that fulfills the will over a competing interpretation that leads to its annulment.  This is because we have before us two reasonable and equivalent interpretations of the testator's will, each of which fulfills the will in its own way, relying on the fact that this way may reflect the truth.
96. In this context, we should remember that a person cannot transfer rights to another that are not his own (nemo dat quod non habet). Accordingly, a person cannot bequeath in his will but his own property (see: LA 1857/24 [Nevo], at paragraphs 41 and 57 of the judgment and the references therein; LA 3872/14 Anonymous v. Anonymous, paragraph 13 [Nevo] (September 8,2014)).  A provision in a will that, according to its language, purports to grant heirs rights that do not belong to the testator - has no validity (see: section 34 ofthe Inheritance Law).  Accordingly, in the absence of a clear indication of the testator's intention to distribute property that is not his, the interpreters of the will must strive for an interpretation that fulfills the testator's word in the dowry of his own property.
97. If my opinion is heard, in these complex cases, the application of the dismissal clause of the type of non-claim will be subject to the test of good faith and reasonableness. In other words, reasonable property claims against the mass of the estate, which were filed in good faith, will not apply to the disposal clause against the beneficiary who has applied to the courts; this beneficiary will be able to continue to claim his share of the estate in addition to his rights to his own property (if it is determined by the competent courts that it is indeed the property of that beneficiary).  Within the framework of this test, only claims that do not knowingly undermine the testator's intent; do not strategically or manipulatively attempt to thwart this intention; and which were filed with a sincere belief in the correctness of the plaintiff's claims with respect to the property that is the subject of the dispute.  This test also requires that the claim be based on reasonable, serious, and with a chance of success; and as Justice Barak noted in the Engelman case, "a claim can be serious, even if the court [ultimately] rejected it" (ibid., in paragraph 8 of Justice Barak's judgment).
98. This is therefore a combined test: the good faith of the winner is a subjective matter, while the question of the reasonableness of the claim is an objective matter. The Supreme Court of the State of Iowa ruled in this vein, on the issue at hand, less than a year ago:

"Because both good faith and probable cause must be shown to avoid forfeiture under the no-contest clause, and because probable cause is an objective test, we hold that a purely subjective standard applies to determine the challenger’s good faith." (In re Estate of Felten, 28 N.W.3d 251,259-60 (Iowa 2025), amended (Feb.  6,2026).

99. To be precise, those who support the granting of unqualified validity to the non-claim clauses are concerned, in essence, that the application of the "good faith and reasonableness test" will harm the testator's will. The problem, in my opinion, is that in situations that fall into the category of doubt-offer, reasonable claims and good faith do not undermine the will of the testator, or, at the very least, the risk of possible harm to his will is greatly reduced.  I am of the opinion that the test of good faith and reasonableness represents a balanced approach that minimizes the risk of harming the will of the testator, given the uncertainty as to his true intentions.  I am also of the opinion that this approach should be adopted, also for the reason that it entails three additional advantages.  First, in the absence of a determination that is more probable than the contrary that the testator sought to limit the entitlement of his heirs to access the courts, it is lawful to give priority to the right of access to the courts - this is due to the fact that it is a basic right and because of considerations of public policy.  Second, granting unqualified validity to non-claim clauses only when we are dealing with an explicit proposal by the testator, which tells those entitled to the will, "Choose between attacking the mass of the estate and receiving the property that I have commanded you, " will incentivize the testators to clarify their intentions and formulate their wills and the terms of disposal clearly (see and compare: CLRC, at pp.  380,392-393).
100. The third advantage is legal coherence. A beneficiary who claims rights to the property included in the description of the estate in the will may attack the will on a parallel ground of error by virtue of section 30(b) of the Inheritance Law, instead of filing a direct property claim.  For example, the beneficiary can file an objection to the execution of the will in which he will claim that when the deceased stated in his will that he bequeathed to a certain person "100% of the shares in Company X", this was done due to a mistake since only 50% of the company's shares were owned by the testator.  Alternatively, the beneficiary may file a claim with the competent court to issue a declaratory judgment according to which 50% of the company's shares belong to him (the beneficiary).  As stated, with regard to wills that are based on the testator's mistake, laws will apply that determine the consequences of the error in the will.  If, after these laws have been invoked, the dismissal clause continues to be in effect, the court will be required to rule on his rights under the will of the beneficiary who submitted the objection to the will.  It seems to me that an objection to a will within the framework of the error track will ordinarily be classified as one that falls within the scope of the non-assault clause (similar to the other grounds of objection listed in section 30(a) of the Law).  With regard to non-assault clauses, there is no dispute that they are subject to the test of good faith and reasonableness, and therefore a winner who has chosen this track will enjoy, in the appropriate circumstances, such protection.  On the other hand, the filing of a direct claim will ordinarily be classified as one that falls within the scope of the non-claim clause.  Given the aforesaid, it is inappropriate that in the framework of different procedural tracks, whose practical purpose is essentially identical, a different law should apply, which leads to different legal consequences.  If the winner wishes to prove a mistake in the will under section 30(b) of the Law, he will enjoy the protection of good faith and reasonableness; if he files a direct claim in relation to his rights in the property, which attacks the mass of the estate, he will not enjoy such protection.  I am of the opinion that such an outcome should not be allowed.
101. I will also note that in parallel legal systems, the possibility of applying the "good faith and reasonableness test" with respect to non-prosecution clauses has been recognized. Thus, for example, the law in the State of Texas (see:   Est.  Code Ann.  § 254.005 (West 2014)) provides that a dismissal clause, including a no-claim type, will not be enforced if the legal process with respect to the will was taken in good faith ("good faith") and on "just cause" (for the application of this test by the Texas Court of Appeals, see: In re Estate of Cole, 2015 Tex.  App.  LEXIS 838, at *23 (2015); See also the Carlson case, in which the Court of Appeals of the State of New York discussed a non-claim clause that was included in an trust agreement and a will, and ruled that a beneficiary's claim will not give effect to the stipulation if it is a reasonable claim that was filed in good faith (ibid., at p. 127)).
102. Finally, I would like to draw attention to the special care that must be taken when the rights that are at stake are the property rights of a spouse by virtue of a financial relationship or marital partnership (as in our case). This is in view of the importance that the legislature attaches to such rights in all matters relating to the division of the estate.  Thus, in section 11(c) of the Inheritance Law it was emphasized that "what is due to a spouse under the Property Relations between Spouses Law, 5733-1973, or according to a prenuptial agreement within the meaning of that law" is not included in the mass of the estate's assets, and what is due to the spouse by virtue of prenuptial relations should not be deducted from his share of the estate (see: Shilo, at p. 140); and also in view of the fact that in most cases such rights are not registered, are not certain, and their recognition will be by way of a retroactive declaration.  These characteristics make it difficult for the beneficiary to choose between his right to marital property and his right by virtue of the will - even when he is faced with an explicit proposal.  For these reasons, the scholar Corinaldi was of the opinion that "a claim by a widow should not be precluded from receiving, in addition to her rights under a will, her share according to the rule of sharing assets between spouses" (see: New Trends in Wills Law, at pp.  270-271).  In addition, Justice Shochat noted in his book that "it is difficult to accept the approach that a woman who is entitled to a certain part according to her husband's will be excluded from this part because of a stipulation clause that determines her exclusion only because she filed a declaratory judgment regarding her right to half of the property by virtue of the rule of sharing or the balance of resources arrangement, especially when section 11(c) of the Inheritance Law recognizes the right of the spouse to receive what he is entitled to according to a prenuptial agreement or according to a resource balancing arrangement without any connection to his share according to the inheritance" (see: Defects in Wills, at p. 327).  Therefore, in situations of this kind, especially, we must ensure that the testator's desire - the desire to make an offer to his heirs - is explicit and clear.
103. In summary: we would do well to adopt the rule according to which disposal clauses of the type of non-claim that fall into the category of the offer will be enforced without reservations. On the other hand, such clauses that fall into the category of doubt-offer will be enforced subject to the test of good faith and reasonableness.  This is when the question of classification of each and every stipulation into one of these two categories will, naturally, be the interpretive work of the trial courts.

The Burden of Proof in the Framework of the "Good Faith and Reasonableness Test"

104. Finally, I will clarify that the heir who wishes to prevail over the dismissal clause is the one who will be required to prove, on the balance of probabilities, that his claim that attacks the mass of the estate or the will itself is reasonable and good-hearted. In other words, if in this case the scales are hostile, then in this situation of an "evidentiary tie" the heir will be bound by the dismissal clause.  This is in accordance with the rule that "each party proves its own claims" (see: Ariel Porat, Alex Stein, "The Evidentiary Damage Doctrine: The Justifications for its Adoption and Application in Typical Situations of Uncertainty in the Cause of Damages, " Iyunei Mishpat 21 191 (1998)).
105. I make this comment against the background of the general duty to initiate civil legal proceedings in good faith - a duty whose violation will be considered abuse of legal proceedings, with all that this entails (see: Judgment on Other Municipal Applications 8553/19 Alexander Oren Ltd. Cohen [Nevo] (November 17,2020); and Regulations 3-4 of the SDA Regulations).  Unlike the case in which we are dealing with, the burden of proving abuse of legal proceedings falls on the litigant who attributes to his opponent a lack of good faith and such abuse.

From the general to the individual

106. In the present case, it was held in the majority opinion of the District Court that the disposal clause in the deceased's will is a non-claim clause. It was further held that the property claim filed by the applicant falls within the scope of stipulation, in principle, (in the sense that it contradicts the description of the estate's assets in the will).  These are specific factual and interpretive determinations that cannot come within the gates of a "third incarnation" hearing, and in relation to them we have no room to intervene.  Leave to appeal in relation to these determinations was not granted in any case.
107. On the basis of these facts, the family court will now be required to complete its work and classify the deceased's will in accordance with the outline set out in the judgment. In the meantime, the Family Court will determine whether the deceased's will falls within the category of error, the category of offer, or the category of doubt-offer.  In the first case, the laws of error will be applied.  In the second case, the stipulation of dismissal will be applied without reservation.  In the third case, the court will continue to examine the application of the "good faith and reasonableness test" in the circumstances of the case.  These are interpretive-factual questions that should be clarified by the trial court - all of this, in accordance with the principles outlined in this judgment.

Conclusion

108. Therefore, I suggest to my colleagues that we consider the application before us as an appeal and accept the appeal itself, so that the hearing of the case will be returned to the Family Court, which will decide in its discretion, after hearing the arguments of the parties, on questions that require clarification as stated in paragraph 107 of my opinion. In view of the totality of the circumstances and in view of the contribution of the parties to the clarification of the important legal issue, which was discussed and decided in our judgment, I will suggest to my colleagues that no order for costs will be made in our court.