Legal Capacity to Bequeath

Can a minor make a will?

No! Only someone over the age of 18 can make a will and if a minor does actually draft a will it will be invalid.

Can a person lacking legal capacity make a will?

No! If someone who has been declared to lack legal capacity by court makes a will it is invalid and cancelled. Until such a declaration is given an adult is presumed to have legal capacity.

Is a will which was made when the testator did not know that the document was a will still valid?

No, it is cancelled. A testator must know the nature of the document being signed i.e. that it is a will in which he/she bequeaths property he or she owns after his /her death, what he/she leaves, and to whom.

What is the legal status of a will made by someone who is mentally ill? The fact that someone is mentally ill does not automatically and immediately mean the will his invalid. A check must be made as to whether the mental illness the testator suffers from affected his/her free will and ability to understand that what he/she making was a will.

If someone made a will and afterwards was declared by court as lacking legal capacity, is his will still valid? Yes, in principle, as a person is presumed to have legal capacity to make a will until it is held otherwise.

Is a will made by someone who is emotionally disturbed still valid?

Most probably. The fact that he/she is emotionally disturbed is not sufficient to bring about the cancellation of the will, as it does not mean that he/she necessarily lacks the legal capacity to be a testator.

What status does a will have if it is made by a person who is mentally retarded but who has not been declared as lacking legal capacity? The will is valid if the person who is retarded has not been declared to lack legal capacity. Mental retardation does not automatically take away the legal capacity to make a will.

What is the legal position if someone claims that the deceased lacked legal capacity to make the will he left? The person who argues that the testator lacked the requisite legal capacity to make a will must bring clear and weighty evidence to support his claim. Unless this is done, the will cannot be invalidated on the basis of his claims.

What is the legal position when someone who claims that the testator was not of sound mind before he made his will?

This does not necessarily mean that the will was invalid. A person must be of sound mind at the actual time he/she makes the will, not before or after.

Is a serious illness from which the testator was suffering when he/she made the will likely to result in its cancellation? No! The seriousness of the illness is not the test. What is crucial is whether the testator was of sound mind when he/she made the will, not of sound body

Is a will made by someone who later committed suicide valid? If the person was of sound mind when he made the will and it is not proved that his emotional state influenced him to make his will, then it will be valid.

Can a will be cancelled because in it the testator disinherits one of his/her children? No! As long as it is not proved that the testator was not of sound mind when he/she made the will it does not matter how logical or just the will is or is not. It will still be valid if it reflects the testator's true wishes and he/she made it of his own free will

Does a will made by someone before he is 18 automatically become valid when he reaches adulthood, if it was not so beforehand? No! A will made by a minor is invalid and remains so even when he/she reaches adulthood. A person can only make a valid will upon reaching adulthood.

What is the legal standing of a will made by a testator who understood that he was making a will when he did so, but later was unable to do so? What counts is the testator’s mental state at the time the will was made, so that from the above, the will appears valid, as he had legal capacity at the relevant point, even though he lost it later.

Are there any restrictions on who can make a will, under Israeli law?

No, the right to make a will is universal under the Inheritance law of 1965. Any adult whose legal capacity has not been taken away can make a will.

Is a will made by a minor of considerable means who clearly understands its contents and consequences valid? No! Such a will is cancelled by virtue of the "testator's' age, without any connection to his ability to understand the document and its consequences.

Can a minor who has a university degree make a valid will? No, a minor's academic record will not make a will he made valid. A will made by a minor will be cancelled because he was under-age, without any connection to his intellectual capabilities.

Does a will made by a minor become valid when he reaches adulthood?

No! A cancelled will made by a minor cannot become validated later on when he reaches adulthood. He is entitled to make a will only upon reaching adulthood and should do so then, if that is his wish.

Will a will made by a person whose legal capacity had been taken away become valid once he is declared to have legal capacity by a court?

No – because the will was made when he lacked legal capacity to make it, and was therefore invalid. He can make a fresh , valid will once he is declared by court to have regained his legal capacity.

Does the fact that a person has been appointed a guardian automatically mean that he lacks legal capacity? No, not necessarily. The situation where a person lacks legal capacity is just one of the reasons why a guardian can be appointed.

What kind of evidence is needed to prove that a person making a will lacked the necessary legal capacity? Medical or other firm evidence to show that when the testator made the "will" he did not understand "the nature of the will " i.e. that he was actually doing, and its consequences.

Who bears the burden of proving that a testator lacked the legal capacity to make a will? The side opposing probate (the order enforcing the will).

If a court has to decide on whether the testator understood "the nature of the will", how will it to do so? It will examine a few factors concerning the testator's awareness : his awareness about making a will, his awareness of the results of making a will, and his knowledge about his heirs and the extent of his estate.

What exactly must a person wishing to invalidate a will prove about the testator's awareness concerning the will at the time he made it? That the testator did not understand "the nature of the will", and that there was a connection between his distorted conception of reality and the instructions he gave in the "will".

When deciding whether the testator had legal capacity to make a will at the time he actually did so, what weight can a court give to testimony of a lawyer who drafted the will?

If it finds it credible, the court can attribute great weight to it, and can even prefer it to medical evidence submitted regarding the testator's mental state, depending on the circumstances.

Can a court disqualify an expert it itself appointed to examine whether the deceased had the legal capacity to make a will? Yes, where there is a substantial risk of bias towards one of the sides. In March 2005 Tel Aviv Family Court rejected a request to disqualify an expert it had appointed – after he had already submitted a report to court – because of his premature exposure to certain evidence . It asked the expert himself whether he thought he had been influenced by this – he answered negatively. The court held that giving permission to look at documentation early did not constitute grounds for his disqualification, especially as he would have needed to look at it at the evidence stage anyway. It added that as a rule courts should be very careful about disqualifying experts they have appointed, especially once they have submitted their reports. It will only do so in the case of premature exposure to documentation, where there is a substantial risk that the expert's views were distorted by this.

Does Israeli inheritance law provide for the dismissal of an expert witness it appoints in an estate case?

No – where a family court dealing with an inheritance case wishes to find a legal basis for dismissing an expert it appoints it will have to resort to ingenuity . Even the Civil Procedure Rules do not deal with this specifically, but in March 2005 Tel Aviv Family Court applied principles in the regulations dealing with experts in road traffic accident cases to fill in the legal vacuum, in a case dealing with disqualification of an expert appointed to examine the testator's mental capacity at the time she made a will.

Is a will made by a person suffering from the mental disease schizophrenia, for which she takes medical treatment, valid, if she gets attacks from time to time? The Inheritance Law of 1965 states that a will made by someone who a court has declared lacks legal capacity or who, at the time he/she made the will, could not understand what he/she was doing, will be cancelled. Therefore, a will made by someone suffering from Schizophrenia who has not been declared as lacking legal capacity could be valid unless it is proved in court that she was not of sound mind when she made it. If an application is made for probate of a will made by a Schizophrenic, then those wishing to challenge it can file formal objection with the Inheritance Registrar. The case will then be transferred to the family court, where arguments for and against its validity will be heard, and ruled upon.

Our late father, who was divorced for a long time , made a will very unfavourable to us, his children, and very favourable towards the woman who had been living with him for the last few years of his life. During that time my father, who was in a bad emotional state, was hospitalized several times in a psychiatric hospital. Can we do anything against the will for which this woman is claiming probate? Yes – file a formal objection to the application for probate with the Inheritance Registrar, after which the case will automatically be transferred to the family court for full investigation. If it is proved that the testator lacked legal capacity to make the will – i.e. was not of sound mind when he did so, then it will not be valid. Clearly, if the testator had been declared to lack legal capacity by court according to the 1962 Legal Capacity & Guardianship Law before he made the will, then it will not be valid. If there was no such ruling, his children can try and prove that he was not of sound mind when he made it, and will need to bring appropriate medical and other evidence to support their claims. The fact that the will favoured his live-in partner over his own children does not, in itself, show a lack of legal capacity as a testator has freedom to bequeath his property as he wishes. However, the issue of undue influence on the part of this lady is definitely worth checking out. Even if it cannot be proved that he lacked legal capacity, probate will not be granted if it is proved that he made the will because he was unduly influenced by this woman.

Can a woman who is known to the National Insurance Institute draft a will in which she leaves her property to her family, without using the services of a lawyer?

Yes! As long as her legal capacity has not been limited in any way, then she can perform legal acts, including writing a will in her own handwriting. She must be able to understand the nature of the will and what she wants to do with her property. Usually a court will not intervene to cancel a will made by someone who is limited/has an emotional disability , unless there are exceptional reasons.A lawyer's presence is necessary when the will is one before witnesses , but where the will is handwritten, bears the date and signature of the testator it is not imperative that it is made in the presence of a lawyer.

If an elderly person is appointed a guardian to manage their affairs, does this mean that they automatically lose their legal ability to make or change a will?

No! Under the Legal Capacity and Guardianship Act it is possible for someone who is unable to look after some or all of his/her affairs to have a guardian appointed by court to do so- without necessarily affecting his/her legal capacity. In other words,appointment of a guardian for an elderly person does not automatically mean that they lack legal capacity. In August 2007 Haifa Family Court emphasized this point when it rejected opposition to an application to probate a handwritten will made in 2001 by a 97 year old lady several weeks after a guardian had been appointed to manage her affairs. The testator , who was a childless widow with no family, was in the independent section of an old age home. She had requested the appointment of a guardian to minimize the role given to respondents , whom she had added as partners to her bank account, following an argument with them. In her previous will , made before witnesses in 1999, she had left her estate to the respondents. Rejecting opposition to the will, the court referred to binding Supreme Court precedent , and held that the evidence brought by the respondents had not proved that the testator lacked legal capacity to write a new will, although she had been appointed a guardian. It granted probate to the will, which was made in the testator's native language, German, and left all her property to the State of Israel.