In the matter before him, the judge ruled Shochat that the claim of the deceased's children in relation to the mass of the estate was filed for unreasonable reasons and tainted by bad faith.
- On the judgment of the District Court in the case of Y.D. The deceased's children filed an application for leave to appeal "in a third incarnation". This request was rejected by Judge D. Barak-Erez, who ruled that it did not meet the criteria set for granting leave to appeal "in a third incarnation". At the same time, Justice Barak-Erez noted that:
"The issue of a dismissal clause raises complex tension against the background of the importance and respectable status of the right of access to the courts in our law. This issue came to the attention of this court about two decades ago, in the case of Nein Engelman. In this judgment, the considerations here and there were discussed with regard to the recognition of the dismissal clauses, including the principle of respecting the will of the testator, along with the right of access to the courts [...] Against this background, it was held that there is no room for a sweeping negation of dismissal clauses, and that the solution to the said tension must be found in a balance based on an examination of the objection submitted in each case on its merits: if the objection is an idle objection, the stipulation will remain valid; on the other hand, if it is an objection that was filed in good faith, the award must be upheld despite the stipulation" (see: LA 9413/17 [Nevo], at paragraph 14; emphases added - A.S.).
On the sidelines, the judge added Barak-Erez Because "As for myself, I am of the opinion that dismissal clauses should be examined very carefully in order to ensure that the violation of the right of access to the courts is not disproportionate(See: ibid.).
- The limited hearing held in the framework of the aforementioned decision did not include reference to Judge Shohat's position that, as stated, the "good faith and reasonableness test" should not be applied when a claim is filed regarding the mass of the estate. However, it seems, on the face of the ruling, that Justice Barak-Erez was of the opinion that this test is applied in relation to the various types of disposal clauses indiscriminately.
- This point closes the discussion of the status of dismissal clauses in the case law of this Court. Here is the place to return to our case.
The Factual Background
- The applicant was a common-law partner of the deceased, at least, starting in 1995. In 2015 - after arranging the deceased's divorce from his previous wife - the two married. The respondents are the deceased's children from his previous marriage. In 2018, the deceased passed away.
- In 1998, the deceased made a will in which he bequeathed his property to the respondents and to the applicant (hereinafter: the will). The deceased also bequeathed a certain amount of money to his previous wife. In the will, the deceased detailed the manner in which his property was to be divided. In the meantime, he bequeathed his shares in Company A, which holds shares in Company L (hereinafter: the Company), to the Respondents only; and to the Applicant he bequeathed art objects as well as certain percentages of his shares in various companies.
- In section 7 of the will, the deceased included a dismissal clause (hereinafter: the dismissal clause) in which he instructed as follows:
"Any person, who, according to Jewish law, claims to be my legal heir, as well as any person who objects to the execution of this will or any of its provisions for any reason whatsoever, and in accordance with this will will not receive anything from my estate, will nevertheless receive, after a demand from my estate, the sum of ILS 1.00 (one new shekel)."
- The will included an additional dismissal stipulation that relates to the deceased's previous wife, in which it was written that the sum of money he bequeathed to her was given "subject to the fact that [the previous wife] will have no rights in the house and on condition that she will have no other claims or demands in connection with my estate. In any event that [the previous wife] demands from my estate any amount in addition to and/or in place of the aforementioned amount, this provision will be cancelled and she will not be entitled to any part of the estate" (hereinafter: the Secondary Disposal Clause).
- In 2015, the Applicant and the Respondents signed a document entitled "Discussed: Will" and addressed to the deceased (hereinafter: the Letter of Undertaking), in which it was written as follows:
"We wish you many more years of work and health until 120. We know that you drafted a will that was deposited with Adv. [z.h.], in which we are also the beneficiaries. We understand how important it is to you that the provisions of the will be fulfilled as you requested in your will, and each of us promises to honor your requests and wishes as they are. We also know how important the [DS] project is to you, and that you want the [DS] group to remain as an asset in your hands, and therefore you ask not to sell or transfer our share of it but only to one of us, who is undersigned, and each of us promises to honor this request" (emphasis added - A.S.).