Inheritance Forum Questions
Is a will made under duress valid? No! It is cancelled. A will must be made freely.
Is an instruction in a will made under threat valid?
No – it is cancelled.
Is an instruction in a will valid if the testator was unduly influenced?
No! An instruction in a will made when the testator was subject to undue influence is invalid. However, gentle but reasonable persuasion does not invalidate an instruction in will.
If the testator was tricked into making a certain instruction in a will , is it valid?
No! Trickery invalidates an instruction
Is an instruction in a will made as a result of fraud, valid?
No!
What happens if there is objection to a will because of alleged undue influence, and the evidence shows that the testator was highly dependent on the beneficiary?
If evidence shows that the testator was totally at the mercy of the beneficiary, the latter must prove that he did not unduly influence the testator to leave him property. For example, if the beneficiary proves that the testator acted on the advice of a lawyer, this can be seen as showing there was no undue influence on his part.
What is the legal position if it is discovered that one of the beneficiaries took the testator to a lawyer's office so that he could make his will?
The fact that a beneficiary accompanies a testator to a lawyer's office does not itself result in the will being cancelled. Undue influence must be proved on the part of the beneficiary prior to the making of the will, for objection to it to be successful.
What happens if someone objecting to a will shows that it has a fault?
The beneficiary will bear the burden of proving that there was no undue influence on the testator, and that it reflected the latter's true and real wishes.
If a couple make a mutual will does the question of undue influence arise?
No, there is the underlying assumption that both spouses wish to make the same basic arrangements regarding their property, and that they do so freely. Someone objecting to the will has to prove undue influence.
Do a testator's age and medical condition give any indication that he was unduly influenced?
No! People often make their will when they are ill and feel they may die.
Does a daily dependence of an elderly parent automatically create the assumption that the latter is unduly influenced?
No! Close contact between members of the immediate family circle does not necessarily show undue influence, as close relationships are natural between them.
What happens if it is proved that the testator was subject to undue influence after he/she wrote his/her will?
In general , undue influence exercised after a testator has made his will, does not invalidate it. However, if it transpires that it was likely that undue influence was also exercised prior to the testator making the will, then it is possible to say that the testator was unduly influenced and that the relevant part of the will is , therefore, invalid.
If family of a beneficiary in a will act as witnesses, is the will cancelled?
No! Their presence does not necessarily provide evidence of undue influence.
Does the fact that certain people with whom the testator has had no contact for many years are beneficiaries under the testator's will indicate that there has been undue influence on their part?
No.
Does the fact that a testator leaves property to someone who is not a relative, but who helped him/her , indicate undue influence?
No, but the intentions of that person when he/she helped, should be checked out.
Can a contract that the testator signed be cancelled because of undue influence?
No! Cancellation of a contract that a testator entered into can only be done in accordance with the laws of contract. Undue influence is only of special significance in connection with wills.
What happens when a will, prepared by a lawyer, contains a number of mistakes because he was not familiar with the law?
A will prepared by a lawyer which contains legal mistakes will not be cancelled by a court. Only when the mistakes are factual and the court is not sure that the testator would have bequeathed as he/she did, had he/she realized the mistake, will this result in cancellation.
Is there any difference in terms of validity , where the testator was subjected to undue influence regarding a particular instruction in his will , whether the person involved was a beneficiary or not?
No! The instruction in the will is cancelled once it is proved that the testator was subjected to undue influence, regardless of whether the person exercising undue influence was a beneficiary or not .
What happens if a person makes an instruction in a will under the influence of someone who intended to help or assist the testator?
The instruction will be cancelled, as the intention behind the involvement is irrelevant. What matters is that person was involved in making the will, and therefore the relevant instruction will be invalid and cancelled.
Who, in law, has the burden of proof where undue influence is claimed?
The person claiming that there was undue influence.
If there is a fault in the will and undue influence is claimed, on whom does the burden of proof fall?
In these circumstances on the person wishing to enforce the will – who must prove that there was no undue influence.
On whom does the burden of proof fall where fraudulence is claimed?
On the person claiming it, as there is the basic assumption that the will is valid, and this must be disproved.
Is there any way that a court can declare a will made under force valid , if it is clear what instructions the testator would have made regarding this property, if he had been free to act?
No, the court has no jurisdiction to remedy such a will under the Inheritance Law of 1965, even if it is able to ascertain what the testator would have instructed if he had not been subjected to force/duress. Thus an instruction in the will made under force is cancelled.
Does the court have any discretion to declare an instruction in a will valid even though it is proved that undue influence was exercised on the testator?
Absolutely not. There is no way of correcting such a fault, and the instruction is cancelled.
How does a court test how dependent a testator was when the question of undue influence arises?
It weighs up the testator's dependency against his independence. It will have to see whether, at the time he made the will, he was physically and mentally independent or not. In this context it should be stressed that physical dependency alone is not conclusive evidence that the testator was dependent on a particular beneficiary.
What does the court look at when 'undue influence' is raised, and it has to consider the help a beneficiary in question gave the testator?
The court will try and establish the type and extent of help the beneficiary gave the testator. It will pay particular attention to whether the beneficiary helped the testator overcome his difficulties and limits , and whether he was the only one who enable him to fulfil all his needs, or whether others did, too.
Why might a court spend time investigating the extent of a testator's connections with other people?
Where undue influence is raised, if the testator was totally cut off from the outside world apart from the beneficiary in question, or had very few and weak links with other people, then the assumption that he/she was dependent on the beneficiary gains force. The more cut off the testator was from the world, the greater the assumption that he/she was dependent .
Are the circumstances in which a will was made likely to indicate something about whether there was ' undue influence '?
Certainly! The Inheritance Law of 1965 states that if someone takes a part in the making of a will then nor he or his spouse can benefit as the instruction in their favour is cancelled. If it transpires that their involvement was minor and did not amount to actually being involved in the preparation of the will, then this assumption of undue influence can be rebutted.
Can a will made under undue influence – on the part of the beneficiary's agent –be valid?
No! The fact that the undue influence was exercised via the beneficiary's agent and not via the beneficiary himself directly does not alter the situation. The agent's actions are regarded as his actions, and, accordingly, the will is faulty and not valid.
Does the fact that legal heirs are left out , and non-heirs are beneficiaries instead, indicate that undue influence was exercised on the testator , and therefore the will should be cancelled?
No! The fact that the testator chose to exclude heirs from his will and include non-heirs as beneficiaries does not , of itself, indicate undue influence, and alone is insufficient to bring about its cancellation.
Is it sufficient to prove that undue influence was exercised on the testator before he wrote his will , in order to bring about its cancellation?
No – undue influence in itself is an essential precondition for the cancellation of the will, but not sufficient alone . As well as proving that the testator was unduly influence before he made the will, the person trying to cancel the will must also prove a causal connection between this and the will itself i.e. that the testator made the particular instructions because of the undue influence exercised on him.
Must a person opposing a will on the grounds of undue influence bring direct evidence of this to succeed?
No – circumstantial evidence may be sufficient if it indicates undue influence in a substantial way.
Does the fact that only one of the deceased's children is named as his sole beneficiary in his will indicate that he was subject to undue influence by him?
No , not necessarily, as the testator's preference towards one child may just reflect his recognition of gratefulness towards him.
Does close and warm relationship that a non-relative had with the deceased prior to his death , without any conditioning in his favour being made , still indicate undue influence that could result in the cancellation of a will in which he was a beneficiary?
As a rule – no!
Does a will made in favour of the manager of the old age home where the testator resided indicate undue influence which could result in its cancellation?
No, providing there is nothing in the circumstances surrounding the drafting of the will that would indicate that undue influence.
Does the fact that a relative helps a testator who is in a difficult physical state indicate that the latter is subject to undue influence?
Not necessarily. As long as the relative does not have ulterior motives and just helps the testator out of kindness, then his/her behaviour cannot be construed as undue influence.
Does a situation whereby a testator is physically dependent on a beneficiary, but is of sound mind and has contact with other people, support the idea that he/she was unduly influenced?
No – even if the testator was physically dependent on the beneficiary, if he/she was of sound mind and had contact with other people, then this would not indicate undue influence.
Could giving a testator a lift to the offices of a notary or lawyer for the purpose of making a will result in it being invalid in any way?
Giving a testator a lift to the legal offices where he/she makes a will does not , in itself, mean that person 'took a part' in making the will , and therefore put probate at risk, wholly or partly. Once again , in March 2006, Tel Aviv court emphasized this point. However, it could be part of cumulative evidence from which a picture of undue influence could be built up.
Could the fact that a testator takes notes to a meeting with a notary or lawyer about the intended beneficiaries and instructions about their shares in the estate expose a will to possible claims of undue influence?
The argument is double-edged. On the one hand it could show that the testator was organized, and made a memo of the vital points, but , on the other hand it could be argued that the testator came armed with an agenda forced on him/her, or even provided by others who were behind it.
In March 2006 Tel Aviv Court pointed out that the fact that an elderly testator came alone to a meeting with a notary armed with the names and I.D. numbers of those relatives he wanted to bequeath property to, but not their intended shares ( which he , himself, dictated to the notary) actually helped rebuff claims of undue influence from those objecting to probate. Had he come with notes of their intended shares, which he would have had to refer to, rather than recite by heart, this would have aroused more suspicion, it noted.
Does the fact that a person helped a testator find a lawyer so that he could make a will for him stop him from inheriting under it?
If a prospective testator promises a person he intends to include in his will that he will leave out an heir from it, and then makes a will to this effect, is this bound to be regarded as 'undue influence'?
No , as long as the will reflects the testator's true and free wishes, and the testator's free will was not cancelled. While the will remains the fruit of the testator's free will , then it is valid.
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