Will in Favour of Witnesses

What is the law related to a will that contains an instruction in favour of the person who drafted it?

Such an instruction in a written will benefiting a person who drafted it is cancelled. If it is an instruction in an oral will, however, it remains valid.

What is the legal position when a will contains an instruction in favour of a person who was present when it was being made?

An instruction in a written will favouring a witness to its making is cancelled. In other words, a witness who signed the will and declared that the testator signed it before him is not entitled to be a beneficiary under the will.

What happens if a written will contains an instruction in favour of the spouse of one of the witnesses to the making of the will?

This instruction will be cancelled. A spouse of a witness to a written will cannot gain under it

Is a conversation that the testator had with a beneficiary prior to making the will likely to result in its cancellation?

No! As long as the beneficiary did not take a part in its writing then the will is valid.

If a testator gives instructions for the drafting of his will through one of the beneficiaries , could this lead to its cancellation?

If the beneficiary is just a vehicle for transferring information then this cannot lead to its cancellation. If, however, the beneficiary took an active part in the preparation of the will by , for example, contacting a lawyer or property appraiser, then he/she will be regarded as having taken an active part in the preparation of the will. Accordingly, the instruction in his/her favour will be cancelled.

Will the fact that a beneficiary chose a lawyer and paid his legal fees bring about the cancellation of the will?

Probably not, as this does not amount to involvement in the drafting of the will.

What happens if a beneficiary changes the content of documents which he is asked by the testator to pass on to his lawyer?

This is regarded as interference with the drafting of the will and as such could result in the cancellation of the instruction in favour of that beneficiary.

If a beneficiary accompanies the testator on the journey to the lawyer's office could this result in cancellation of an instruction in the will in his favour?

No, as this alone does not amount to interfering with the drafting of a will.

Is the fact that a beneficiary was present when an oral will was being made by the testator likely to result in it being cancelled if he/she was not a witness to it?

No, even if he was party to a conversation with a lawyer this does not necessarily mean that he/she took a part in the making of the will.

Could the fact that a beneficiary carries out a technical act at the request of the testator lead to the cancellation of his inheritance under the will?

Not if the deed was purely technical and he was not involved in the content of the will.

Is a will at the signing of which the son of a beneficiary was present likely to bring about its cancellation?

No! Only the presence of a beneficiary's spouse at this time is likely to result in the cancellation of the instruction relating to the beneficiary's inheritance.

Is the presence of a beneficiary's legal guardian at the signing of a will likely to bring about the cancellation of his inheritance?

No! The guardian himself is not a beneficiary and therefore there is no problem with his presence.

Do legal fees paid to the executor of the estate make him into a beneficiary?

No, as the issue is payment for legal services in connection with the performance of his professional duty, not a part of the inheritance.

Is a will still valid if an association is a beneficiary of the estate and one of its workers is a witness to its signing?

Yes, because it is the association and not the individual who acted as the witness who is the beneficiary, and so the validity of the will is unaffected.

Will all of a will, or part of it, be cancelled if a beneficiary took a part in its making?

In general, it is possible to cancel just the instruction relating to that particular beneficiary. However, if this results in the remaining instructions being affected to the extent that the testator's wishes are distorted, then the whole will must be cancelled.

What happens to the share of the disqualified beneficiary in a will, following the cancellation of an instruction relating to him?

The inheritance of the disqualified beneficiary will be divided among the heirs according to law.

Will a will made before a rabbinical court member, be valid if it names his wife as a beneficiary?

No!

Can a beneficiary under a will who was a witness to its making bring evidence to rebut the assumption that he was involved in its making, to prevent the instruction in his favour being cancelled?

No! The assumption in the Inheritance Law of 1965 whereby an instruction in a will in favour of a witness – in relation to wills that are not oral – cannot be rebutted.

Is it necessary to prove undue influence in order to get an instruction in a will in favour of a witness cancelled?

No! The Inheritance Law of 1965 provides for the cancellation of an instruction in favour of a beneficiary in this case , simply by virtue of his status as a witness.

Does a court have discretion to uphold an instruction in a will favouring a beneficiary if he was involved in the making of the will?

Absolutely not, even if the instruction reflects the testator's true wishes.

If a witness to a will marries a beneficiary under it after it is made, could this prevent the latter gaining under it?

No! The relevant time for testing whether the instruction in the beneficiary's favour is valid is the time that the will was made . At this time the witness was not the beneficiary's spouse, and thus the instruction will be valid.

Is an instruction in a will in favour of the spouse of a person involved in its making valid – if, after its making, they divorce?

No – it is cancelled because they divorced after it making, and they were married at the time the will was made.

Could a person's involvement in drafting an introduction to a will prevent him benefiting under it?

As rule no, providing he was not involved in writing the body of the will's text, and the introduction contains no instructions regarding the essence of the will concerning the division of the property.

If a beneficiary was one of several people taking a part in the making of a will – and not the only one – could this prevent the instruction in his favour being cancelled?

No! The Inheritance Law of 1965 does not require that a beneficiary be the only one who was involved in making the will to prevent him gaining under it . It is enough for him to be one of several people involved for the instruction in his favour to be cancelled.

Could a conversation that the testator has with a beneficiary about a will after it is made prevent him gaining under it?

No!

Is a 'beneficiary' under a will entitled to talk to the testator about the instructions in the will before it is made – without taking a part in its making?

Yes as a rule, because until the will is actually made a 'beneficiary' cannot take a part in its making . However, there is a risk that an instruction in his favour could be cancelled on the grounds of forbidden/undue influence.

Could asking a person who is a beneficiary under a will be prevented from gaining under it because he approached a person to act as a witness?

No! This does not amount to taking a part in the making of a will on the part of the beneficiary.

If a person conducts negotiations with the testator and his lawyer, about the contents of his proposed will, exchanges drafts, and pays the latter's fees, can he inherit under the will?

No! Such activity would count as involvement in the making of a will and as such any instruction in the will favouring such a person would be cancelled. That person's activities are clearly beyond technical involvement in arrangements, as an agent of the testator.

Could the presence of a beneficiary in one of the rooms of the house while the testator was making his will bring about any instruction in it in his favour?

Possibly, although as a rule the presence of a beneficiary outside the actual room in which the testator makes a will does not result in the instruction in his favour being cancelled. Each case is decided on its particular circumstances, and the beneficiary's presence in the place where the will was made is likely to be regarded as a forbidden influence on him, and could result in the cancellation of the instruction in his favour.

Is there any significance in the fact that distant family – whom the testator has only tenuous contact are physically present at the time he makes his will?

Yes, the presence of family members who have distant contact with the testator, perhaps just by phone or letter , at the time a will is made does signify involvement in its making, and as such any instruction in their favour could be cancelled for this reason.

Is it preferable for a lawyer who drafts a testator's will to interfere in its content, where he feels that it may not reflect the latter's true, and free, wishes?

As a rule no, but yes, as an exception. In general,a lawyer should not interfere in the contents of a will. However,where he has a doubt about the instructions reflecting the testator's free will,or where the contents are unusual, it could be very important for him to clarify the testator's true wishes and confirm that the latter really understands the significance of his instructions.

If a relative cannot inherit under a will because he was a witness to it, can he still inherit under law?

Yes!

Is a lawyer who drafts a will and witnesses its signature, then handles the application for probate and acts as Executor , and is paid for this, regarded as a beneficiary?

No! A lawyer receives payment for his services , subject to court supervision, and cannot be regarded as a beneficiary.

Will presence of a beneficiary in the room where a will is being made at that time automatically result in him losing his inheritance under it?

No, not necessarily, as each case will be decided on its merits, but such presence should be avoided where possible.

Will a witness be able to inherit under a will if he did not know that he was a beneficiary under it when he witnessed the testator signing it?

No! A person who acts as a witness to a will cannot benefit under it regardless of whether he knew he was a beneficiary or not.

Are there any exceptions to the rule banning witnesses to a will from being beneficiaries?

Yes – where the will is an oral will! Relatives are frequent witnesses to oral wills made on a person's deathbed and can inherit under them provided the relevant conditions are met.