When a Will or Testament is Considered Null and Void¹

A Testament is formally one’s statement regarding disposition of his personal property at his death, distinguished from a “Will”, which controlled disposition of a real property.

Today the word “Testament” is unnecessary, since a Will may dispose of both real and personal property.

A Will is revocable during the testator’s lifetime. Unlike the United States, where most of the states require that a Will must be in writing and witnessed, in Israel, there is no legal obligation to have a written Will. Minors and persons of unsound mind have no legal capacity to make a Will.²

Remember! During a lifetime there are no limits as to how many times you make changes in your Will, but the last one—and just the last one—will prevail.

When it is Considered Null/Void

There are a few guidelines that the Israeli courts have ruled on through the years. By these guidelines the court will decide when it is reasonable or necessary to void a Will. Please notice that in our previous article we explained the different types of Wills, but just to remind you, we are not necessarily dealing with a written Will.

Unfair or Unequal Influence

A Will must be written with the total free will by the testator. Any outside influence of any type may jeopardize the legality of the Will.

It is not important who influences the testator, or why. If the Will is not a total creation of his free will, it will be void.

Will – The burden of proof

In most cases, the burden of proof, when asking the court to void a Testament, falls on the shoulders of the one asking the courts to void the Will. This person could be anyone.

There are a few exceptions to this rule:

• When defects are found in the document,
   
• When between the testator and the beneficiary “special relations” are found, such as: client and lawyer, patient and doctor, or the testator is under control of the beneficiary (for example, a caretaker)³.

One should be aware that these are the main guidelines but they are flexible. In the end, the decision will be taken at the court’s “discretion”.

Our Recommendations

1. Use a lawyer to write a Will.
    
2. Keep a copy in a safe place and an extra copy with a friend.
    
3. Let someone you trust know that you have written a Will.
    
4. If you have any close family member employing any kind of “caretaker”, keep an open eye. Any sign of dependency is a warning sign for you.
    
5. If you want to be included in a Will by a testator and you are his caretaker, you should have a written medical opinion about the testator’s mental capacity.
    
6. If the testator wants to include you in his Will, do not be present; not even in the lawyer’s office when the Will is being written.

Our sages of blessed memory have said that preparing a Will is a blessing for a long life and not a reason to fear the evil eye.

Wishing you a long and happy life until 120!
 

Tzvi Szajnbrum, Attorney at Law

¹    Of no legal force of binding effect, null, nugatory, incapable of being ratified ( Gilbert Law Dictionary)

²    Gilbert Law Dictionary

³    A caretaker can be anyone: A friend, an employee, a neighbor, a family member. A caretaker is the person “serving” another, physically or mentally.