"The testator may order that the heir cease to be entitled to the benefit when a condition is fulfilled or when the time comes."
- Disposal clauses are a private case of winning accompanied by a terminating condition within the meaning of section 44(a) of the Law (see: Michael Corinaldi, "New Trends in Wills Law", Kiryat HaMishpat 3 268 (2003) (hereinafter: New Trends in Wills Law)). Beyond that, the issue of dismissal clauses was not regulated inthe Inheritance Law.
- In the legal literature, a distinction has been made between two types of "non-claim" stipulations: one, "non-attack" stipulations (hereinafter also: the non-assault stipulation); and the second, "non-claim" stipulations (hereinafter: the non-claim stipulation).
- "Non-attack" clauses are those that indicate that a beneficiary who objects to the very validity of the will will be removed from his right. This refers to an attack on the will on grounds of internal assault of the Inheritance Law, such as: the incapacity of the testator or a will made due to rape, threat, unfair influence, trickery or fraud (see: sections 26 and 30(a) of the Inheritance Law; New Trends in Wills Law, at p. 268; Family Appeal (Tel Aviv-Jaffa District) 15807-09-16 D. v. B.S. , paragraph 10 [Nevo] (November 5,2017) (hereinafter: the Y.D. case). )).
- "No claim" clauses are those that indicate that a beneficiary who files a claim in relation to the mass of assets included in the estate, with the aim of detracting from the scope of the estate, will be removed from his estate. These claims are based on causes external to inheritance law, such as claims that come by virtue of the Property Relations between Spouses Law, 5733-1973, or by virtue of any other external law that grants the beneficiary any right in the estate's assets (see: New Trends in Wills Law, at p. 269; D., at paragraph 12).
- We are not necessarily dealing with alternative types of stipulations. It is possible that a stipulation of discharge in a will, as formulated by the testator, will be, at the same time, of the "non-attack" and "non-claim" types.
Public Regulation in Wills Law
- The law of wills is found in the hostel of private law. However, as has already been ruled more than once, a person's basic rights are not limited to the realms of public law, and they also leave their mark in various areas of private law. These rights - and in our case, the right of access to the courts - are injected into private law, whether directly or through "valve concepts", such as "public policy" (see: Civil Appeal 294/91 Chevrat Kadisha Gehsha "Kehilat Yerushalayim" v. Kestenbaum, IsrSC 46(2) 464,533 (1992); Civil Appeal 1770/21 Hetzroni v. Facebook Ireland Limited, paragraphs 44-45 [Nevo] (December 14,2022); Rabin and Rhodes, at pp. 605-606).
- The Contracts Law (General Part), 5733-1973 (hereinafter: the Contracts Law), states that "a contract whose conclusion, content or purpose is illegal, immoral or contrary to public policy is void" (see: section 30 of the Contracts Law). The Inheritance Law does not contain such a provision. Section 34 of the Inheritance Law states that "a provision of a will whose execution is illegal, immoral or impossible is null and void" (see also section 38(a) of the Inheritance Law). Although section 34 of the Inheritance Law does not explicitly use the term "public policy", case law recognized the possibility of annulling a provision in a will on the grounds that it contradicts public policy (see: Civil Appeal 477/88 Attorney General v. Tel Aviv University, IsrSC 44(2) 476,485 (1990); Civil Appeal 30/92 Neiman v. Attorney General, IsrSC 47(2) 275,279 (1993); Shaul Shochat Defects in Wills 322-325 (Second Edition, 2001) (hereinafter: Defects in Wills)). This is by virtue of an expansive interpretation of the term "illegal", within the meaning of section 34 of the Inheritance Law; by virtue of the connection of section 30 of the Contracts Law to section 61(b) of the same law, which applies its provisions to any "legal action"; or by way of relying on the principle of "public policy" as a general legal principle (see: Civil Appeal 245/85 Engelman v. Klein, IsrSC 34(1) 772; Paragraph 2 of the judgment of Justice E. Barak (1989) (hereinafter: the Engelman case)).
- This raises the argument that the barrier that the disposal clause poses to a beneficiary who wishes to initiate a legal proceeding regarding a will constitutes a violation of the right of access to the courts - a right that, as stated, is recognized as a basic right of every person in Israel. The continuation of this argument is that the dismissal clauses contradict public policy. On the other hand, there is the principle of freedom of command and the right of the testator to do with his own property as he pleases - a right that is also defined as a basic right (see: section 3 of the Basic Law: Human Dignity and Liberty).
The prima facie contradiction between these two rights was discussed in part in the case law of this court, which dealt with the terms of their dismissal.