Lesson # 217 • WILLS The concept of wills in halacha is of relatively recent origin. In halacha, relatively recent origin may mean hundreds of years ago. In fact, many of the laws discussed in this lesson regarding the laws of wills go back to the Talmud. The modern development of wills began in the 13th and 14th centuries of the Common Era. The reason for writing a will is as follows: The Torah sets forth a very definite order of inheritances to be adhered to when a person dies. The class of persons who will inherit under Torah law are designated as the "natural heirs." To defy this order is a very serious violation of Jewish law. However, ways were developed to enable a person to dispose of his assets according to his wishes, yet not violating the Torah command. Some of the solutions and the problems each creates under halacha and/or the law of the land are the following: (1) The gift of a healthy person. The person making the gift
need not be healthy; in fact, he may be on his deathbed. His gift is treated
as a gift of a healthy person unless he complies with the criteria of who
may make a valid gift causa mortis and the criteria for making such a gift.
This gift may be made by any person at any time, and if it complies with the
halacha it will most probably also comply with the laws of the land. This
gift is made by a person, and a kinyan is performed to make the gift
effective. The shortcoming as compared to a will is that the donor cannot
rescind the gift and also loses the immediate use of the property that he
gives to the donee. For example, Reuven wishes to give a gift to his
children of all of his assets since he feels certain that they will provide
for him. Once they have obtained the assets, however, his children may or
may not provide for him. The beneficiaries may disappoint him, and he may be
sorry that he gavethem the gift. Furthermore, the donor may live many years
and now be without assets, and there may be other people whom he later
meets, or who are later born, to whom he would have liked to leave some or
all of his assets. (2) The gift causa mortis: This gift in some instances may take the place of a will, but these instances are few and far between. The person must be on his deathbed, and this is not available to replace most wills that are drawn, since most wills are drawn by persons in good health. Most important, the declaration made by the critically ill donor will not dispose of the assets according to the law of most countries. In a few countries there may be holographic wills, but even there the halachic gift causa mortis may not comply with these laws. The gift causa mortis is not a realistic method of disposing of the assets of the donor. (3) The meritorious act of hearkening to the wishes of the dead person: This is a difficult concept to fulfill even according to halacha and certainly will not be upheld in most secular courts. It is difficult to fulfill halachically since according to the majority view, the act can take effect only if the owner of theassets escrows them with a third party and gives instructions on how they should be disposed of. Even according to the minority view that this method can take effect even if the owner of the assets does not escrow them with a third party; the declaration of intent has to be made in the presence of the natural heirs. Inmost instances, the owner will not want the natural heirs to know the disposition he makes of his assets. Also, unless made in writing and complying with the secular laws, the oral declaration will not comply with the laws of having a written will properly executed by the owner of the assets. With proper guidance by a lawyer and a knowledgeable rabbi, this may be a possible method to use to comply with both the halacha and the laws of the land. It takes into account the fact that the halacha in this instance is relying on what is probably a minority view of not escrowing the assets and yet complying with the meritorious act of hearkening to the wishes of the dead. Also, the natural heirs must be advised of the disposition. (4) The owner gives a gift, following the laws of the land, to be effective immediately but retains for himself a life estate to use the assets that he gifted: After the death of the donor, the entire assets (both the underlying assets and the use thereof) belong to the donee. This type of a gift requires a kinyan, which should not be difficult to perform. The shortcoming is that this method locks in the gift and does not leave any flexibility with the donor to change his mind. Another shortcoming with this method is that it only applies to assets at the time that the gift is made and does not apply to later-acquired assets of the donor. (5) The owner gives a gift, following the laws of the land, to be effective immediately but retains for himself both the right to use the assets during his lifetime and also the right to change or rescind the gift: This type of a gift also requires a kinyan, which should not be difficult to perform. This method, if in a form that complies with the laws for wills in the country or state where written, serves the purpose of a valid will and a halachically correct gift. The shortcoming is that this type of will in halacha transfers only those assets that are owned by the donor on the date the gift is made. It is not effective halachically for assets acquired after the gift is made. The will can contain a list of the major assets of the donor and can be updated from time to time as a codicil to the main will or the writing of another will. Some problems can be overcome by stating that the executor of the will or the attorney who prepared it is to be believed if he states that he knows the extent of assets owned by the donor on the date he executed the will. (6) Relying on the law of the land. Most authorities hold that the concept expressed in halacha that the law of the land is to be followed in monetary matters does not apply to wills. There are some authorities who state that the concept does apply to wills. If this is so, then if the will complies with the laws of the secular authorities, it is valid under the halacha. The short- coming is that many authorities hold that it does not apply to a will. (7) Situmta: The commercial customs of a trade, guild, or a community are incorporated into the halacha as being binding on all the Jews in the community, trade, or guild. There are authorities who hold that since most of the Jews living within the community rely on the com- munity standards and laws in making wills, thisbecomes the halacha standard. The shortcoming to this approach is that situmta as envisioned in halacha is limited to common commercial actions such as sales, leases, and the like and does not apply to wills. (8) Admissions: Reuven, the owner of assets, can admit that he owes money to another person or that the assets belong to another person, and the admission is binding. The admission is used as a lever by Reuven when writing a will to convince those who are entitled to the assets under Torah law to acquiesce to dividing them as envisioned by Reuven. The subject matter of this lesson is more fully discussed in
Volume VII Chapter 258 of A Restatement of Rabbinic Civil Law by E. Quint.
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