"That [such a claim] is based on good and reasonable reasons and not on baseless allegations, and because their conduct was done in good faith. Good and reasonable reasons for opposition and good faith prevent the application of a dismissal clause even when there is direct opposition to the execution of the will and not only an objection to the mass of the estate" (see: Yona, at para. 20; emphasis added - A.S.).
- Our eyes see: Justice Strasberg-Cohen was of the opinion that non-prosecution clauses (although she did not call them so) were possible and valid, and that even with respect to such clauses, the "good faith and reasonableness test should be applied". In other words, according to the position of Justice Strasberg-Cohen, as expressed in her judgment in the Yona case, reasonable claims with respect to the mass of the estate that were filed in good faith will not act against a beneficiary in accordance with the will with respect to the disposition clause that was included in it (see: Rabin and Rhodes, at p. 611).
Ltd. 9413/17
- Another case in which a stipulation of dismissal was heard came before this court in the framework of an application for leave to appeal "in a third incarnation" that was filed against the judgment of the Tel Aviv-Jaffa District Court in the case of D. (See: LA 9413/17 Anonymous v. Anonymous [Nevo] (January 3,2018) (hereinafter: LA 9413/17)).
- In the case of Y.D. A will of the deceased was discussed, which included a stipulation of dismissal. The children of the deceased, who were among the beneficiaries according to the will, objected to its execution. This was done both in the arguments regarding the validity of the will and in the arguments regarding the mass of the estate. In the judgment of the District Court in the case of Y.D. Vice President S. Shochat noted the distinction between non-assault clauses (opposition to the validity of the will) and non-claim clauses (a claim in connection with the mass of the estate). In this framework, Justice Shochat expressed his position that the "test of good faith and reasonableness" should not be applied in relation to non-claim clauses. According to him, this test applies only in relation to non-claim clauses. In other words, according to Justice Shochat, any claim in relation to the mass of the estate will activate the non-claim type dismissal clause; and he wrote as follows:
"I see no impediment to giving effect to a non-claim clause in which the testator made it clear in his (fulfilled) will that an heir who files a claim, even if on grounds external to the inheritance law, with the aim of thwarting the distribution outline that he determined, will be dispossessed of the portion or portion that was granted to him in the will. With all due respect, this does not infringe on the right of the heir - since, as stated, he does not have a vested right to receive any part of the testator's estate - to turn to the courts by virtue of a right external to the inheritance law and sue it [...] but then - he knew that he would lose his share of the estate. This is the condition for winning, and this is his own choice, of the heir [...] The condition of reasonable cause and good faith that is required to nullify the validity of the non-assault clause comes only from the same principle that commands the fulfillment of the will of the deceased. It does not come out of a desire to protect the interest of the heirs. It is intended to prevent a situation in which a will will be made that does not reflect the free and true will of the testator - the same will that we are commanded to fulfill, and to enable the existence of a proceeding to examine the veracity of the will. This condition does not need to be stipulated at all for a 'non-claim' stipulation" (see: Y.D., at paragraph 14).