Disposal Clauses in Supreme Court Rulings
- The hearing of the dismissal clauses, which took place within our walls, was conducted within the framework of two guiding judgments that were given in the late 1980s and 1990s: the Engelman case and the Yona case (see: Civil Appeal 2698/92 Yona v. Edelman, IsrSC 48(3) 275 (1994)).
The Engelman Matter
- In the judgment given in the Engelman case , a dispute between two sisters was discussed, which revolved around the inheritance of the deceased mother. The deceased made a will according to which her estate would be divided, essentially, equally between her two daughters. The will included a stipulation of dismissal, which reads: "I demand that my aforementioned will be honored. If my daughter Yehudit Engelman objects to my will, then she will be removed from my estate." The daughter Yehudit filed an objection to the execution of the will, claiming that there was doubt as to the handwriting in which the will was written; that the will was written under unfair influence; and that her sister was involved in the drafting of the will (hereinafter: the objection's arguments). The court rejected the objection arguments and confirmed the validity of the will.
- The daughter Yehudit further argued that even if the will is given validity, the dismissal clause included in it should be ordered to be null and void, since it contravenes public policy. This argument was also rejected.
- Justice Y. Maltz adopted a restrictive approach with respect to the application of the principle of public policy to wills. According to this interpretation, a clause in a will will be revoked by virtue of public policy "only if the violation of public policy is so severe that it reaches the level of illegality or immorality" (see: The Engelman case, at paragraph 9 of Justice Maltz's judgment). In light of this, Justice Maltz ruled that the dismissal clause discussed in the Engelman case does not violate public policy in a manner that justifies its cancellation, since the dismissal clause stemmed from "the legitimate desire of the deceased to prevent disputes between her daughters and to ensure that her last wish will be fulfilled in accordance with his wording and writing" (see: ibid.).
- Justice Barak adopted the more widely accepted approach with respect to the place of public policy in the law of wills and examined the validity of the disposal clause in light of this. In the meantime, Justice Barak discussed the various considerations that are at stake in this case. On the one hand, Justice Barak pointed to the system of considerations that support the validity of the dismissal clause, first and foremost the principle of respecting the will of the testator. At the same time, Justice Barak enumerated additional considerations, including allowing the deceased to protect the interests dear to him, such as the peace of the family and encouraging compromise between heirs. On the other hand, Justice Barak noted a contradictory set of considerations that can justify the nullity of the dismissal clause. Justice Barak noted that the dismissal clause deters the heirs from approaching the court with legitimate objection arguments, and therefore a will may be validated that does not reflect the testator's wishes at all. Justice Barak noted that dismissal clauses block access to the courts and thus "are contrary to the public interest" (see: The Engelman case, at paragraphs 5-6 of Justice Barak's judgment).
- Against this background, Justice Barak proposed an interim solution whereby a dismissal clause would be enforced (i.e., the beneficiary who objected to the execution of the will will be removed from his winnings) only when the objection to the will was based on an empty argument or on an argument that was raised in bad faith. However, the dismissal clause will not be given validity (i.e., the objection to the execution of the will will will not harm the beneficiary) when the objection to the will is based on reasonable grounds and raised in good faith.
In summarizing his position, the judge ruled Lightning As follows: