Freedom to Bequeath

Is a person's undertaking to make a will valid and enforceable?

No! A person's undertaking to make a will is not binding. He has absolute freedom to make a will or not, and if he/she chooses to do so, to do whatever he/she wishes with his property in it.

Is a person's undertaking to change his will in certain circumstances, valid?

No – a person's freedom as a testator cannot be limited in any way!

Is a person's undertaking to cancel a will in certain circumstances , valid?

No! A person's freedom to do what he wishes with his property cannot be limited and an undertaking to cancel a will has no validity.

Can a will include an instruction taking away the right of the testator from changing his will?

No! Such an instruction is invalid as it blocks the freedom of the testator to do what he wishes with his property.

Can a will include an instruction which limits the testator's right to change or cancel it?

No! Such an instruction which tries to limit the testator's freedom is invalid.

Can a person sue the deceased's estate if he is left out of the will, and claims the testator promised to include him as a beneficiary?

While the Inheritance Law of 1965 invalidates any undertaking made to bequeath property to a particular person, someone who the deceased promised to make a beneficiary and was not included in his will, can bring a civil suit against the estate for the damage he/she suffered as a result.

Is a mutual will made by a couple valid?

Yes, a mutual will is valid although it does restrict the freedom of each testator. However, each testator is free to change his will, until the day he dies, without any restriction.

Is an ‘agreement’ made between two people whereby one makes a will according to the terms of this pact legally binding on the potential testator?

No! A testator’s freedom to bequeath cannot be limited like this and such an agreement is of no binding value.

Can children who are supposed to inherit only after the testator's wife, according to his will, relinquish their rights under it, so as to get a better deal according to law?

No! The rationale is that this would be likely to frustrate the testator's wishes, as under his will he intended the children to inherit after his wife.

Is a testator's right to do as he pleases with his property protected in Israel?

Yes, Under the Basic Law : Human Dignity and Freedom Act this right is raised to the level of a constitutional right . This legislation grants a person a constitutional right to do what he wishes with his property after his death. Such a right can only be changed by law, according to certain procedures set down.

Can a testator make a will in which he undertakes not to change it?

No! Such an instruction in a will would be invalid. The Inheritance Law of 1965 gives a testator complete freedom to change and cancel his will, so that an irreversible instruction in a will would not be valid at all.

Can a person use a general power of attorney form given a spouse , in order to transfer rights in an apartment to him/herself as a gift and to give his/her own instructions for their transfer to others , after his/her own death, in a will, when there is no contract relating to any transaction of this kind?

No! There is a distinction between a document creating rights – such as a contract to sell an apartment – and a power of attorney given to execute a particular deed stated in it. The power of attorney is merely the vehicle or means for carrying out the obligation expressed in the document or contract. Without external evidence to show that the person giving the power of attorney made a specific undertaking to transfer rights to the spouse, then that spouse has no right to use the power of attorney to transfer those rights.

In a case before Tel Aviv Family Court in April 2005 it was held that a general power of attorney which includes a reference to transfer of property rights – without external evidence of a transaction with or without payment in the way of an agreement, contract or undertaking – is insufficient for the transfer of rights by one spouse to the other. Accordingly, any instruction in a will that the spouse receiving the power of attorney makes bequeathing rights transferred on the basis of a general power of attorney alone will be cancelled. A testator cannot bequeath rights which do not belong to him/her in a will.

Is a testator able to make changes in his will without the beneficiaries in it knowing?

Yes! A testator has freedom to cancel and change his will, and make a new one, all without notifying any potential heirs or beneficiaries.

Can an owner of a farm on a Moshav (village) write a valid instruction in his will bequeathing his status to someone else after his death?

No! A farm owner can give instructions bequeathing his property rights in his will, but not his status as a member of the village, which is a Co-operative Association.In July 2003 Tel Aviv Family Court made this clear, and added that if the beneficiary who inherited the property rights in the farm but whose application for membership was refused by the Moshav later on, would be entitled to live and work there as a resident, and not a member.

I am a pensioner, but remain a keen ten-pin bowling player. I want to bequeath part of my estate to future promising young players in my club, so that each year the coach can pick out one or two and give them a cash prize to help them buy equipment, or get special private coaching. Can I do this?

Yes – the Inheritance Law of 1965 allows a testator to nominate someone who can select certain people from a group, to inherit from his estate. A mechanism can be drafted to this effect in relation to promising young players from your sports club, and a fund can be set up for this purpose, from which annual prize/s can be given.

Can a testator bequeath property to a beneficiary who wishes to remain anonymous?

No! A testator cannot bequeath property to a person about whom no identifying details are given . The Inheritance Law of 1965 states that an instruction which does not identify the beneficiary is cancelled.

I am married but live with another woman by whom I have a child. I want to make a will. Do I have to include my child by her in my will?

No! A testator is free to do what he wishes with his property by way of a will and is able to cut out his child, or one of his children, from his estate by making appropriate instructions. A testator cannot be forced to change or cancel a will either. Freedom to bequeath one's property as one wishes is a basic foundation of Israeli inheritance law.