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Grunfeld’s Daf Yomi - Mitzvah Lekayem Divrei Ha’Met

January 13, 2010

MITZVAH LEKAYEM DIVREI HA’MET, HONORING THE WISHES OF THE DECEASED.©

By Raphael Grunfeld, January 25, 2010

One Shabbat afternoon, Mr. Cohen, who was perfectly healthy, and sipping tea at the time, turned to his son Jack and said, “You know that I love your sister, Jill, as much as I love you. So when I die, I would like her to have half of my estate together with you.”

Later, after the death of Mr. Cohen, Jack refuses to share the estate with Jill. He argues that according to Jewish law, the son inherits the entire estate and the sister is not entitled to share in the estate. “The only way Dad could have changed the situation,” argues Jack, “is either by means of a Will By Way of Gift of a Healthy Person, (“Matnat Bari”) or by means of a dying declaration (“Matnat Shechiv Mei’ra”). But Dad did neither. He did not do the former because his wish what was not put down in writing, neither was it accompanied by a Ma’aseh Kinyan, an act of transfer. He did not do the latter because he was not dying when he expressed his wish that Jill share in the estate. He was perfectly healthy when he said it. So either way, Jill is out of luck.”

So Jill goes to her Rabbi. The Rabbi calls Jack. “ Look Jack, you admit that your father expressed his wish that Jill share in the estate with you. You have an obligation to carry out the express wish of the deceased, “Mitzvah Le’kayem Divrei Ha’met.” So be a good Jew and share it with Jill.”

But Jack refuses. Mitzvah Lekayem Divrei Ha’met, or not, he is the legal owner of the estate according to Torah law. In the absence of one of the effective ways for changing the Torah’s order of succession, Torah law is on Jack’s side. He is adamant. In fact, in order to preempt any further pressure on him, Jack sells all the assets in the estate to a third party, pockets the money and spends it.

When does the obligation of, “Mitzvah Lekayem Divrei Ha’Met,” apply and how can it improve Jill’s position?

According to the accepted Halachah, (Shulchan Aruch, Choshen Mishpat 252:2, based on the opinion of Rabeinu Tam, Tosaphot, Bava Batra 149b, s.v. “deka”), the obligation of Mitzvah Lekayem Divrei Ha’met applies only if the deceased, during his lifetime, actually deposited the assets that he wishes to give to the beneficiary with a third party, such as a designated administrator of his will, with instructions to give those assets to the beneficiary after his death.

But none of this improves Jill’s situation in the circumstances of this case. It is generally accepted that, unlike a Matnat Bari and unlike a Matnat Shechiv Mei’ra, both of which have the power to transfer the ownership in the estate to the beneficiary of the gift (even if such beneficiary is not a recognized heir under Torah law), the obligation of Mitzvah Lekayem Divrei Ha’met, even when the assets are deposited with an administrator with instructions to deliver them to such beneficiary, does not transfer ownership to such beneficiary (Ketzot Hachoshen, Choshen Mishpat 248:5). Notwithstanding the obligation of Mitzvah Lekayem Divrei Ha’met, unless the deceased made the gift by way of Matnat Bari or Matnat Shechiv Meira, Jack remains the legal owner of the property because he is the Torah heir. It is true that the by virtue of Mitzvah Le’kayem Divrei Ha’met, Jack, who remains the legal heir under Torah law, has an obligation, a Mitzvah, to share the estate with Jill. Indeed, as long as the estate is still in the hands of Jack, a Jewish Court of law can enforce this obligation and compel him to do so (Ketzot Hachoshen, 252:2). Furthermore, if Jill seizes her share in the assets of the estate from Jack, the dictum, Mitzvah Lekayem Divrei Ha’met permits Jill to keep them (Maharam Mintz). But Jill’s right, arising out of Mitzvah Lekayem Divrei Ha’met does not transform Jill into an heir. Jack is still the heir, albeit with an obligation to transfer part of the estate to Jill. But, if Jack, the Torah heir, ignores his religious obligation of Mitzvah Lekayem Divrei Ha’met, and sells all the assets of the estate, the sale is effective and Jill has no claim against Jack (Shulchan Aruch, Choshen Mishpat 252:2).

Some Halachic authorities, (Minchat Shei and Responsa Achiezer Volume 3, Simanim 34 and 35) have more aggressively applied the obligation of Mitzvah Lekayem Divrei Ha’met in favor of the non-Torah heir beneficiary, even in situations in which the assets were not deposited with an administrator. These Halachic authorities have argued that the right that the law of the land gives to daughters to share in the estate is tantamount to depositing the assets with an administrator.

While still recognizing the sons as the legitimate Torah heirs, these Halachic authorities have ruled that, based on Mitzvah Lekayem Divrei Hamet, the daughters, in such situations, must receive their shares of the legacies.

Raphael Grunfeld’s book, Ner Eyal on Seder Moed is available now at OU.org and at your local Judaic bookstore. His new book, Ner Eyal on Seder Nashim & Nezikin will be available shortly. You can reach Raphael at .(JavaScript must be enabled to view this email address).