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- As stated, the question in which we were tasked with deciding is this: Under what conditions will the disposal clause in the will be enforced against a beneficiary who has filed a claim concerning the assault on the mass of the estate? Where the winner's claim was a reasonable claim that was filed in good faith, will the dismissal clause be applied against him as well, and he will be dispossessed of his share of the estate?
- In relation to this question, the opinions were divided in the trial judgment. Providing an answer to this question is necessary for the purpose of clarifying the dispute in our case, and it has a significant operative implication for the result determined in the trial judgment.
- Moreover, the dispute that arose in the aforesaid question between the positions of the majority and the minority in the District Court raises an important general question - did the judgment of this Court in the Yona case establish a binding rule on our issue, or was what was stated therein regarding this issue stated above necessity?
- In my opinion, there is a clear answer to this last question. As stated, in the judgment in the Yona case, Justice Strasberg-Cohen ruled that the filing of a claim in relation to the mass of the estate may trigger a non-claim dismissal stipulation, but if it is a bona fide claim that is based on reasonable reasons, the stipulation will not be enforced and the beneficiary will not be removed from his share of the estate. This determination comes alongside the determination that the claim is in any case not considered a claim on behalf of the winners according to the will, and therefore does not invoke the dismissal stipulation in its entirety. It is clear that this is an incidental statement. By the way, this statement was also not supported by legal analysis, and the court devoted only a few words to it, based on the Engelman case, in which, as stated, a non-assault dismissal clause was discussed, as opposed to non-claim. The judgment given in the Yona case therefore did not establish a general and binding rule as to the fate of non-claim dismissal clauses.
- The last hearing in principle regarding various types of dismissal clauses was held in this court more than three decades ago. As stated, part of that discussion that relates to the question before us here was limited to a few sentences, which were written incidentally, and were not supported by any references. Subsequently, the issue of disposal clauses was brought to the attention of the family courts and the district courts only in isolated cases and in different and varied circumstances (see, for example: Estate Case (Family Tel Aviv-Jaffa) 37420-03-16 B v. Anonymous [Nevo] (June 26,2016); Estate Case (Nazareth Family) 36954-12-18 Anonymous v. Anonymous [Nevo] (February 4,2025)). The judgments handed down in these cases did not establish uniform and clear rules regarding the fate of non-claim disposal clauses, and they should not be regarded as a settled rule.
- Therefore, a clear and uniform law in our sugya - as defined at the beginning of my remarks - does not exist.
- This issue is a legal-principle issue that deserves to be clarified "in a third incarnation" (see: Civil Appeal Authority 103/82 Haifa Parking Lot Ltd. Matzet Or (Hadar Haifa) Ltd., IsrSC 36(3) 123 (1982)). Therefore, in accordance with our authority under Regulations 138(a)(5), 149(2)(a) and 149(2)(b) of the Civil Procedure Regulations, 5779-2018 (hereinafter: the SDA Regulations), which also apply to applications for leave to appeal in family matters by virtue of Regulation 44 of the Family Courts (Procedures) Regulations, 5781-2020, I would suggest to my colleagues that we consider the application for leave to appeal before us as if permission had been granted and an appeal was filed in accordance with the permission granted. Leave to appeal is granted only in relation to the fundamental question at hand, as defined at the beginning of my remarks, and the decision on this question will be made on the basis of the texts that the parties have placed before us in accordance with my decision of May 17,2026.
The Validity of Non-Claim Clauses: The Possible Models
- At the top of the legal rules that apply in our districts in matters of wills is the principle of freedom of command (see: LA 9085/16 Anonymous v. Anonymous, paragraph 19 and the references there [Nevo] (March 2,2017); Additional Civil Hearing 7818/00 Aharon v. Aharoni, IsrSC 59(6) 653,690-688 (2005)). The overarching principle that guides the court in matters of wills is strict safeguarding the fulfillment of the testator's will - "let his will be arbitrary, unreasonable, discriminatory, even cruel" (see: Civil Appeal 1212/91 Keren Lebi v. Binstock, IsrSC 48(3) 705,733 (1994)). The obligation to respect the will of the deceased is an expression of the autonomy of the will of the individual. Such an obligation is part of the constitutional right of every person to dignity, and it is also derived from the testator's property right (see: sections 2 and 3 of the Basic Law: Human Dignity and Liberty; as well as Civil Appeal 1900/96 Talmacchio v. Custodian General, IsrSC 35(2) 817,826 (1999); Civil Appeal 724/87 Kalfa v. Gold, IsrSC 48(1) 22,28 (1993)).
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