Oral Will

What are the conditions for an oral will? It must be made before two witness and the testator must be dangerously ill/on his/her deathbed or feels that he is going to die, and this is true.

What is meant by "on one's deathbed "? Confined to bed, unable to get up and function and look after one's affairs, including making a written will.

What must the witnesses do after they have heard the oral will? They must write them in a memo, which must be dated, and describe the circumstances of its making . They must both sign the memo and deposit it with the Inheritance Registrar .

How soon must the oral witnesses make the memo and deposit it? Not immediately, but as soon as possible.

Can the witnesses write the memo several weeks after they receive the oral instructions? No! The law requires that they do so as soon as possible, although if they are slow in doing so the court can still validate the will if it has no doubt that the memo reflects the real wishes of the testator.

Can the witnesses to an oral will deposit a memo they make of the testator's instructions a few weeks later? No. Such a delay in depositing the oral will is likely to invalidate it unless the court has no doubt about the genuineness of the will, the testator's intent and the reasonableness of their excuse for the delay

Is there a standard version for an oral will that the testator must follow? No! There is no special requirement. What is important is that it is clear that the testator has a firm intention to give instructions about what is to be done with his property after his death, and does so.

What is the situation when there is an oral will but the two witnesses to it did not write a memorandum they were supposed to and deposit it in court? If they filed affidavits then the court has discretion to uphold the will if it has no doubts about it.

Does each witness to an oral will have to prepare his/her own memo of the testator's instructions? No! If the two witnesses were both present at the same time when the testator gave his oral will then the correct procedure is for them to draft the memo together. If the testator said what he had to say to the witnesses separately on different occasions, then it is clearly preferable for each witness to prepare his/her own memo.

What happens when there is an objective reason why one of the witnesses cannot write down what is being said by the testator at the time the oral will is made? In this situation it is possible to write it down later, and for the will to be upheld, provided the court has no doubts about it.

What happens if one of the witnesses refuses to sign the memo? If the witnesses who refuses to sign the memo agrees that it expresses the testator's wishes then it is possible to ask the court to order him/her to sign it .

Can the witnesses record things said to them by the testator in gestures or movements of the hand? No! Movements of the hand or body are no substitute for the requirements of the law that the testator must express what he/she wishes to say orally.

What happens when the testator makes an oral will regarding his/her property but also asks to prepare a written one? In such circumstances the oral will is to be regarded as valid.

What happens if the testator makes an oral will but then demands that the instructions given be put in writing so that he/she can sign the document? Where the testator not only expresses his/her intentions ,but demands that the instructions given be recorded in writing so that he/she can sign them, then one cannot regard what is said as an Oral will.

Is an oral will valid if there is only one witness? No. There must be two for the oral will to be valid.

Must a person making an oral will expressly say to the witnesses "You are my witnesses"? No! There is no need to invite special witnesses . An ordinary person can be a witness as long as the testator intended him/her to be a witness.

Can the witnesses make the memo in a language which is different from the one in which the testator gave his oral instructions? Yes. There is nothing to stop this.

Can a testator give his oral will to each witness on a separate occasion? Yes.

What happens when an oral will was made in front of only one witness but two sign the memo prepared by the one present? This oral will has no legal validity.

What happens when a testator makes his oral will separately before two different witnesses but their memos, prepared separately, differ substantially? Where this is so and the differences are substantial, then the will cannot be valid. If, however, the differences are small the will can be upheld.

How long is an oral will valid for? An oral will is automatically cancelled 30 days after it is made if the circumstances justifying its making have passed, and the testator is still alive.

Does a witness have to write down the testator's instructions as he/she actually speaks? No! They can be written down shortly afterwards, though writing them down as the testator gives them is also fine.

What is the value of an oral will compared to other forms of will? Equal, provided it is made according to law.

Must a person making an oral will actually say to the witnesses that he is going to die and that is why he is giving the instructions? No! He need not actually explicitly say that he is going to die.

What test will the court apply regarding a testator’s capacity to make an oral will? Both a subjective and objective test – that the testator was objectively really facing death and also believed this to be the case .

Will an oral will made by the testator shortly before he committed suicide be valid? Yes, as the testator would be regarded as someone seeing himself close to death- and did in fact die soon afterwards.

Can a person who has lost the ability to speak due to throat cancer make an oral will? No! An oral will cannot be made by any other way than that stated in the Inheritance Act of 1965.

Can a person facing death make a will before witnesses who cannot hear i.e. understand his language? No!

Can witnesses who do not understand the testator’s language use translators? No! Only the translator and not the witness can hear the instructions and witness them.

Can witnesses to an oral will avail themselves of the services of a lawyer to help them draft the memorandum? No! The witnesses to an oral will are obliged to record the testator’s words as he said them and cannot use the services of a professional regarding this.

What happens when it is proved that the testator’s words differed from what the witnesses wrote in the memorandum of his oral will? Provided the it is proved to the court’s satisfaction that the testator did actually say something different, his words will take precedence over the instructions recorded in the memo.

What is the position when someone fears he is going to die, makes an oral will, has his life saved by medical treatment, recovers and then a few days later dies from a heart attack? The oral will would be valid, because it only becomes cancelled or invalid a month later if the testator is still alive and the circumstances justifying its making no longer exist. In this situation, the testator was genuinely facing death – subjectively and objectively- but died during the ‘validity’ period.

Will a testator who makes an oral will, but recovers from danger, remains alive over a month later, and then finds himself facing death once again , need to make a second oral will? Yes! Once a month has passed, and he remains alive, and the circumstances justifying the oral will have passed, it becomes cancelled, and therefore, he will have to make a new one if he finds himself facing death once again.

Can a dated video recording of a testator on his death bed giving oral instructions to two witnesses be regarded as a memorandum of an oral will to be deposited with the Inheritance Registrar? Yes, in principle.

Can a video recording be used to prove the genuineness of an oral will? Yes! A video recording that eternalizes an oral will can be used as evidence of its genuiness.

Can a person on his death bed who has access to a telephone give an oral will to one of the witnesses over the phone? Yes!

What role do the witnesses to an oral will play in court, if there is opposition to the application for probate? A very important role, because they can testify as to the physical and emotional state of the testator when he gave them his oral instructions, and to explain how clearly they understood him.

Can just one of the two witnesses to an oral will deposit the memo with the Inheritance Registrar? No! Both of them must do this together.

Can the two witnesses to an oral will deposit the memo of it with the Inheritance Registrar via a messenger , or agent? No. The memo must be deposited by the two of them in person.

Can a deaf and dumb person make an oral will before witnesses who understand sign language? Yes, providing the witnesses make a written memo afterwards and deposit it with the Inheritance Registrar.

Can a testator make an oral will which refers to a written document he prepared, but did not manage to sign, though he planned to do so? Yes , providing that the document can be identified clearly and without any doubt.

Can a person whose legal capacity is being tested before court, as part of legal proceedings to declare him incapable , still be a witness to an oral will? Yes. Until a person is declared to lack legal capacity by a court during guardianship proceedings , he is presumed to have it.

Will a court asked to uphold an oral will really insist on two witnesses? Yes! Two witnesses to an oral will are vital, and a precondition for probate. This was emphasized by Tel Aviv Family court in May 2005 when it held that although the demand for two witnesses to an oral will is vital, they can witness it on separate occasions, and not simultaneously. However what is said to each of t he witnesses must be complementary. 'One comment, clear and unequivocal' was the phrase used. In the actual case decided upon the application for probate of the oral will was rejected because the court was not persuaded that the testator had made up his mind, after cross-examination of the witnesses and the memo signed by them.

What happens if a memo of an oral will is not deposited? This is an omission which amounts to a fault in form and the burden of proof shifts , in the case of opposition to the will, to the person applying for probate. The court looks upon the memo of an oral will as a substitute for the testator's will, and an expression of the deceased's wishes.

If a person has been told by his doctor understanding that he is going to die is he able to make a valid oral will instead of a written one? No – one of the preconditions for a valid oral will is that the testator must be facing death from both a subjective and an objective viewpoint. The patient's subjective feeling or interpretation of what the doctor said is not sufficient: an expert medical opinion is needed to show that indeed the doctor/s considered that the person was facing death. This point was emphasized by Nazareth Family Court in July 2008 when it rejected an application to enforce an oral will: medical evidence presented was insufficient to prove that at or around the time the deceased allegedly made the oral will the doctors considered he was about to die. Furthermore the doctor who allegedly gave him his "death sentence" a few days before his demise did not appear as a witness and his medical records relating to the relevant visit did not indicate that his patient's condition was critical.

Will a delay in making and depositing a memo of witnesses to an oral will affect the chances of it being valid? Certainly! The Inheritance Act creates strict conditions for the making and enforcement of oral wills. A memo of an oral will should be made by the witness/es straightaway and deposited with the inheritance registrar as soon as possible. Nazareth Family Court stressed in July 2008 that a delay of over six months in making a memo and deposting it constituted a fault and reduced its credibility.

If a memo of an oral will is only presented when application is made for probate will this affect the chances for probate? Yes, unless a very persuasive reason is given for the delay in depositing the memo. The Inheritance Act states that the memo of an oral will should be made straightaway after the testator gives the instructions, and should be deposited with the Inheritance Registrar as soon as possible. Clearly when this procedure is not followed, the credibility of the memo diminishes , together with the chances for the successful enforcement of the oral will. These points were made by Nazareth Family Court in July 2008 when it rejected probate for an oral will , noting that the delay in question was over six months and the memo first appeared as an attachment to the application.