Undue influence in making wills

Sections from a lecture by Attorney and Notary Rachel Schachar as part of an advanced training for experienced lawyers:

Inheritance Law, Chapter B: Validity of the Will

1. 30 (a) A provision of a will that was made due to coercion, threat, undue influence, trickery, or fraud is void. (b) A provision of a will made due to a mistake—if it is possible to determine clearly what the testator would have instructed in his will if not for the mistake, the court shall amend the will accordingly; if this cannot be done, the provision of the will is void.

What is Undue Influence in making wills?

The undue influence referred to in Section 30 of the Law does not necessarily mean an "unfair act." The issue is not judged based on the purpose of the act or the result—even influence for the most positive needs can be considered undue. What the courts look for in the matter of undue influence is a foundation of unfairness according to our social and moral codes as a society.

Why is There No Closed List of Tests for Undue Influence?

Because undue influence is an interpretation of social events and because there are constant social changes, the courts develop this issue through case law from case to case (the Israeli legal system is casuistic). Therefore, the list of tests presented in this lecture is a collection of significant key tests from case law that serve as a tool for every lawyer.

What Tests Can Help Us in Examining Undue Influence?

• The Basic Distinction Between Influence and Undue Influence
• Is the Goal to Influence the Deceased Necessarily Undue Influence?
  As derived from the Goodman ruling (CA 4902/91 Shdema Goodman v. Yeshivat Shem Beit Midrash Gavoha LeHoraa VeDayanut):
  Not necessarily.

Case Example: The Goodman Case

Shlomo and Yosef Musayoff, who signed the will as witnesses, are the deceased's sons. The third witness who signed it, Yoel Hagin, is the deceased's grandson (the son of one of the appellants), and he wrote the will in his handwriting in the deceased's apartment at the Ramada Renaissance Hotel in Jerusalem on Saturday evening before signing it. The deceased was a very religious person and had a resistance to bequeathing his inheritance to his daughters who did not bear the name Musayoff. Although he was wealthy, the deceased did not give much of his property to his daughters during his lifetime.

Yosef approached his brother Shlomo, who was also wealthy and lived in London, and had an apartment in the Daniel Hotel in Herzliya, and asked him to help their sisters. Shlomo's response was that their father should take care of the daughters. The deceased intended to donate the property to the yeshiva. This intention was expressed in his previous wills from 1976 and 1983 and in the dedication letter from 1973. The sons were aware of this intention.

The brothers Shlomo and Yosef Musayoff and their nephew Yoel went up to Jerusalem to influence the deceased to bequeath the property to his daughters. In their conversation with him, they reminded him of the story of the daughters of Zelophehad, who received a portion of their father's inheritance, and the fact that his father (their grandfather) had bequeathed some of his property to his daughters. The will was written by Yoel in his handwriting after consulting with Shlomo without involving the deceased, in the deceased's apartment before signing. The will was read to the deceased, and he asked to know "if it is for the daughters immediately or after his death," and when it was clarified to him that it was after his death, he signed the document, and Yosef and Shlomo Musayoff and Yoel Hagin signed as witnesses.

The district court ruled that it was undue influence, but the Supreme Court overturned the decision and ruled as follows:

• Shlomo and Yosef Musayoff were not the beneficiaries according to the will, and their influence was exerted for the sake of their sisters. They had no legal or other obligation towards their sisters, who were adults and one of whom was married to a judge; therefore, they had no personal interest in causing their father to bequeath the property to his daughters.
• They did so because they believed it was appropriate. This largely removes the element of unfairness from the influence.
• Furthermore, unlike most cases discussed in case law, the deceased was not dependent on his sons. He was a wealthy man who lived in a luxurious apartment in a hotel and was cared for by a personal caregiver, "Shuki."
• He was not dependent on his sons for care or for meeting his daily needs, nor was he economically, physically, or mentally dependent on them.
• Moreover, Shlomo and Yosef did not live in the country but visited from time to time, and apart from their familial closeness to their father, there was no evidence of any dependence on their part or that he was under their influence.

What is Undue Influence and How Can We Identify It? The Marom Case Facts

The deceased, who was a widower and childless, passed away at the age of seventy-eight. About six months before his death, a caregiver (the petitioner) began working in his home and served and cared for him until his death. Upon his death, the deceased left two wills: in the first will, he bequeathed all his property to Dr. Yitzhak Hamra. In his second will, made seven weeks before his death, he bequeathed all his property to the caregiver. After the deceased's death, Dr. Hamra filed an application with the district court to probate the first will, while the caregiver filed an objection to probate the first will and a request to probate the second will.

The litigation between the two ended in a compromise whereby the caregiver would receive about $30,000 from the estate, and in return, she would withdraw her objection to the first will, following which the court ordered the first will to be probated.

However, some time after the conclusion of the proceedings, Dr. Hamra was put on trial for exploitation and fraud for making wills in favor of himself for elderly people, including the deceased's first will. When he was convicted, the court revoked the order issued at his request to probate the first will. When the order for the first will was revoked, the petitioner renewed her request to probate the second will. Her request now faced opposition from the Attorney General.

The Attorney General's argument before the district court was that the will made by the deceased in favor of the petitioner was invalid and should be declared void: firstly, because at the time of making it, the deceased did not know how to distinguish the nature of a will, and secondly, because at the time of making the will, the deceased was subject to the undue influence of the caregiver.

The Marom Case Verdict

The verdict in Marom reviews the parameters that can assist the court in determining whether there was undue influence.

The Test of Comprehensive and Fundamental Dependence – and the Test of Denial of Free Will

The more fundamental the dependence, the more likely it can be said that there is more undue influence, and vice versa. The rule (Ben Nun) is that mere dependence is not enough, and for the dependence to meet the required condition to establish the presumption, it must be "so comprehensive and fundamental that it can be assumed that his free and independent will was negated." Dependence can indicate undue influence only if the additional condition established in the Ben Nun ruling is met, namely, that the will's provision is "clearly to the benefit" of the beneficiary. This means that if the contested provision of the will, even though it benefits the beneficiary, is not "clearly to his benefit," the presumption of undue influence will not arise, and the burden of proof will not shift.

The Scope of the Testator's Dependence on the Heir

To determine the extent of the testator's dependence on the heir, sub-tests have been established. The four main tests are: the test of independence; the test of assistance; the test of relationship with other people; and the test of the circumstances of making the will.

Dependence and Independence

The basic test for determining the existence and intensity of dependence is the test of independence. The question the court asks itself is whether, at the relevant period of making the will, the testator was "independent"—physically and mentally—and to what extent. The answer to this question carries significant weight in forming the decision: the more independent the testator was in both respects, the more the court's tendency to deny the testator's dependence on the beneficiary will be strengthened. The testator's independence was a consideration taken into account in the decisions of many cases. Reliance on this consideration led, in some cases, to the rejection of the claim of dependence that establishes a presumption of undue influence (see, for example, CA 389/85 Marcus v. The Attorney General, The General Custodian (Marcus Case), p. 510; and in CA 750/90 Kollel Beit Yehuda v. Gutter, p. 504), while in other cases, it led to the acceptance of the claim (see, for example, CA 562/85 Ernstein v. Raz, pp. 421; and CA 2622/90, 2663 Shani v. Lermer, p. 199). The question of whether the testator was independent should indeed be examined over a given period, but it is equally important to ascertain his condition at the time of making the will (see CA 133/84 Rechtman v. Zisman, p. 774). It is also important to note that the testator's absolute physical dependence is not sufficient evidence of dependence on others. His mental and cognitive independence may compensate

The Test of the Bar Mitzvah and Physical Condition

Katzenshtein Case

A couple in a second marriage created reciprocal wills. In these wills, the deceased's children were disinherited, while the woman’s daughters received the entire estate. The deceased’s daughter filed an objection to the will, claiming undue influence. The objection asserted that at the time he made the will, the deceased was 80 years old, suffering from a terminal illness, and that the will was made in the last year and a half of his life when he was dependent on her mother.

Additionally, the deceased’s daughter argued that the fact that the respondent and the deceased made a joint will in one document, rather than two reciprocal wills, is enough to suggest that each spouse played a role in drafting the other's will. The court determined that dependency is not the main issue, but rather whether the dependency negated the testator's free will.

The respondent and the deceased entrusted the drafting of their will to a notary, Attorney Stemary, who identified them and recorded the details of their will from their statements. According to the certificate of the will, signed by him, the notary was convinced that the testators understood the Hebrew language in which the will was written. He added that he read the will to them, and after they declared it was their will, they signed it willingly. Indeed, the deceased was about 80 years old at the time he made the will and was apparently also ill. However, these two factors alone are not sufficient to establish a claim of undue influence by the respondent. Wills are not always made by someone who is healthy and not concerned about their imminent day; in fact, the opposite is often true. This alone, of course, is not enough to invalidate the validity of the will. (CA 510/90 Katzenshtein v. Sidransky (hereinafter – Katzenshtein Case [19]), p. 225).

The Health and Mental State Test

The Circumstances Surrounding the Will’s Creation

In the **Ben Nun Case (CA 423/75 Ben Nun v. Richter and Others, PD 31 (1) 372)**, the deceased bequeathed all her property to her nephew three weeks before she perished in a fire that broke out in her house. In her will, the deceased, Mrs. Albachari, disinherited all her family members and requested that they accept it with understanding and maintain unity.

The deceased was an educated and independent woman until 1965, when she contracted polio and became paralyzed. In the last years of her life, she severely deteriorated, both physically and mentally. She lived in poverty, filth, and squalor. She lost control of herself to the extent that she would sometimes relieve herself in public places – in the streets, on buses, and in a grocery store where she used to buy her groceries. She also did not adequately perceive what was happening around her. For example, she rented a room in her house to a woman who lived there with an Arab man. The room became a meeting place for prostitutes with their clients, and despite the quarrels that broke out there and the neighbors’ complaints, the deceased claimed that these were "good girls."

The nephew to whom she bequeathed all her property regularly visited her and brought food and cooked meals from his home. While he was there, he would take care of her and clean and tidy up the house. It can be said that during all that time, he took care of her needs and personal matters, which due to her deteriorated state, she could not handle on her own. From the time she made the will until the day of her death—a period of three weeks—the appellant visited the deceased every day.

The Circumstances That Surrounded the Drafting of the Will and Led to Its Invalidation

– The nephew arranged for the drafting of the will by a lawyer, according to him, at the deceased’s request.

– At the same time as the will, an irrevocable power of attorney was prepared, instructing to transfer her house immediately as a gift to the nephew.

– The only such asset that the deceased had was a single-story house where she lived, and a room that was part of her house, which she rented out.

– The rent from the room, together with the income from a sum of money she had deposited in the bank, served for her livelihood. She didn’t need much since her needs were few and her standard of living was very low.

– The lawyer who drafted the will came to the deceased's home with the nephew and a notary.

– In front of the notary, a public certificate from a general practitioner was presented, stating that the deceased was indeed weak but sane. The notary himself, when he came to the deceased’s house, was also impressed that she knew and understood what she was doing.

– In court, it turned out that the notary explained to her in her language the nature of the notarial power of attorney she signed, but not a single word about the will.

– The lawyer who drafted the will believed that the notary also explained the will to her and, based on this belief, made an affidavit attached to the request for the will's execution, declaring, among other things, that the deceased understood the contents of the will "since it was translated for her into French, a language she understands."

– It was found that in fact, the will was not translated for the deceased by the public notary, but only the irrevocable power of attorney.

Additional Red Flags from the Court’s Judgment – Signing a Testator on an Immediate Transfer of Property

– The common practice of drafting a will alongside signing the testator on an irrevocable power of attorney for the immediate transfer of their property to the future heir raises suspicion of undue influence.

– "The very act of receiving an irrevocable power of attorney from her, alongside the will, raises questions. After all, the will was already intended to secure all her property for the appellant after her death, including the residential house for which the power of attorney was given. So why would she also want to transfer her residence to him during her lifetime? In any case, we did not hear that the deceased requested the appellant to arrange such a power of attorney, and it was apparently done according to advice given by lawyers to the appellant as an additional measure to the will to ensure his interest. According to all indications, the prepared power of attorney was brought to the deceased without her prior knowledge, and she agreed to sign it on the spot after – according to the public notary’s words – its contents were explained to her."

– The testator's ability to consult with a lawyer on their behalf or others before drafting the will.

Griffith v. Robbins Case

In this case, the deceased was over the age of 84; at the time in question, she was blind or nearly blind and completely dependent on the mercy and help of others. Thomas Griffith married the deceased’s niece, Mary Morris. She had complete trust in them, and it can be said that they were the people whose mercy and help she depended on. They stood in such a relationship to her that exposed her to their influence to such an extent that they cannot insist on the validity of the gift unless they prove that it was the result of her free will and was done with the intervention of an uninterested person.

Also, in this case, Mary Robbins, who had a very limited income—a house and premises with an annual value of about £20 and some household items—signed a document according to which she gave all her real and personal property to Griffith and his wife, keeping for herself only the right to income for her lifetime and depriving herself of the power to use any part of the principal of her meager property for her maintenance during her lifetime.

A Will Created on the Spot in the Lawyer's Office

In the **Aharonian Case (CA 733-88 Joseph Aharonian v. Mandel Elishka, 45 (5) 705)**, the deceased signed a will in 1980, bequeathing most of his property, including his residence, to his nephew, the respondent. In 1983, the deceased signed a second will, leaving all his property to the Aharonian couple, who took care of him in his last years, not as caregivers but ostensibly as an act of goodwill. The nephew filed an application for the execution of the first will, and the appellants objected, seeking to execute the second will.

Red Flags from the Aharonian Judgment

1. The deceased did not come of his own accord to the office of the will drafter but was brought there by Mr. Aharonian (a fact that the appellants and the lawyer tried to conceal and deny).
2. The drafting of the will did not take several months; rather, "everything was done at once."
3. At the time of signing the second will, the deceased's appearance was shabby, "he appeared unshaven, his face covered in sores, and he walked heavily and unsteadily" (indicating the deterioration of his condition that led to his complete dependence on the appellants).
4. At that time, the deceased was isolated and lonely, and his connections with the respondent and other distant relatives of his or his deceased wife were weak and rare.
5. Mr. Aharonian began taking care of the deceased while working under his supervision as an apprentice in a carpentry shop. At first, they only invited him to his parents' house on holidays, but over time, as the deceased's condition deteriorated, his dependence on the appellant and his wife increased. They would do his shopping, bring him cooked dishes, etc. The fact that the deceased drafted a sale agreement for his apartment to the Aharonian family without any consideration, and the apartment being his only property on earth, is a red flag.

Test of Familial and Physical Proximity – Who Initiated the Will's Drafting?

In cases involving physical or familial proximity, it is generally important to demonstrate that the testator received independent advice from a lawyer who was well-versed in all the facts and circumstances of the case. In the present case, it was proven that the deceased annulled a mutual will without fully understanding the need for a new will and its implications.

The Aharonson Case (CA 1750/90 Hanoch Aharonson 1 Samuel Aharonson 2 Avraham Aharonson)

In the Aharonson case, a factual situation emerged where a father was entirely dependent on one of his sons while his other children distanced themselves. The deceased and his wife (who predeceased him) used to make wills periodically. In these wills, the couple bequeathed their property to each other, with variations in each will regarding the beneficiaries after the death of the last survivor. These beneficiaries were all their children, although in some wills, the appellant was preferred over his siblings in terms of the inheritance bequeathed to him.

After his wife's death, the deceased developed a complete dependency on his son Hanoch while distancing himself from his other children, likely with Hanoch's encouragement. Hanoch took care of all the deceased’s affairs, from personal needs such as food to managing his financial matters. Although even before the mother’s death, the appellant took care of the couple’s affairs, at that time, the other children also visited the parents' home, and there was no estrangement between them and the parents.

"The appellant was the one who took care of all the deceased's needs, prepared his meals, and managed his financial matters. The deceased’s other children distanced themselves from him. It is irrelevant whether the children, the appellant, or the deceased are to blame for this; the result is the same: after his wife's death, the deceased was left alone, and all his trust was placed in his son Hanoch."

"The dependency on Hanoch and the complete trust the deceased had in him are also expressed in the conversation between the deceased and Judge Porat, where the deceased clarified that Hanoch and his wife actually do everything for him. Under these circumstances, it seems to me that there is room to apply the presumption of shifting the burden of proof, and the appellant had to show that there was no undue influence on his part."

To refute the presumption of undue influence, there was a need for positive evidence that the will was an independent act of the testator. It was necessary to convince the court not only that the deceased understood the significance of the will but also that it was the result of clear and free thought. In such cases, it is generally important to show that the testator benefited from independent advice from a lawyer who was well-versed in all the facts and circumstances of the case.

The appellant was the one who actually came up with the idea of the will. Attorney Borochov himself testified that he did not seriously discuss the need for a new will and its implications with the deceased.

Circumstances of Drafting the Will – Witness Test for Beneficiaries

In CA 433/77 [2], it was stated that although the legislative intent behind these two sections is similar, the technique adopted in them is different: In Section 30, the undue influence must be proven, and the burden generally lies on the one claiming undue influence.

Section 35 is different. It does not require proof of undue influence but embodies the idea that any initiative by someone who benefits from the will and took part in its drafting raises the suspicion of misleading the testator (see CA 707/76 [3], p. 554). The legislature created a kind of conclusive presumption that whoever takes part in drafting the will unduly influences the testator (CA 851/79, 160/80 [4], p. 109). Therefore, even if the beneficiary proves that they did not unduly influence the testator, it would not help them.

Test of Credibility of the Influencer – A Case Where a Notary’s Testimony was Crucial

In the Schwartz case (CA 7506/95 Schwartz v. Beit Ulpana Beit Aharon and Yisrael), the matter involved a person who disinherited his daughters and bequeathed all his property to a Torah study institution. The daughters argued that the institution's representatives exerted undue influence on their father to bequeath all his property to the institution and disinherit those close to him.

The Schwartz case is interesting because it was proven that the institution's representatives indeed influenced and asked the deceased to bequeath property to them. However, the court ruled that despite the excessive activity of the institution's representatives in creating the connection with the notary and bringing the deceased to him, the process of drafting the will itself was validated thanks to the notary's actions. The notary made sure to keep the deceased away from the institution's representatives during the drafting of the will and took care to ascertain his wishes and reasons while sitting with him alone in his office.

Under these circumstances, there was no flaw in the trial court's findings that at the decisive stage of making the will, the institution’s representatives were not involved at all.

Additionally, testimonies revealed that it was very important for the deceased that the institution's representatives recite the Kaddish prayer regularly in his memory. He also stated in his will that his daughters were financially established and had distanced themselves from religion.

The Case of Kollel Beit Yehuda v. Gutter (CA 750/90 Kollel Beit Yehuda v. Gutter)

In this case, the Supreme Court explicitly stated that if the initiative to draft the will was the testator's and the beneficiary merely carried out the testator's command by arranging for a lawyer for the testator, this would not invalidate the will.

The deceased was hospitalized in the geriatric department of "Shaare Zedek" hospital. One day, when the respondent visited her, she asked him to contact a lawyer and request that he draft a new will according to the data she provided, including the names of the beneficiaries and each one's share. These were written on a note. The deceased's instruction was that the respondent should contact a lawyer of his choice, as long as it was not the lawyer who drafted her previous will. The respondent approached Attorney Gross, who drafted the contested will based on the data he received from the respondent. Another fact related to these is that the respondent was not present at the signing and was not in the deceased's room at the time of signing, but was in the hospital at that time.

Content of the Will is Not the Decisive Factor

In the Schwartz case, the court ruled that the content of the will is not what determines the presence of undue influence, but rather the circumstances and process of its drafting.

Another Case Where Undue Influence was Determined Due to the Circumstances

In CA 562/85 Avraham Mordechai Ehrnstein v. David Raz, the deceased knew the Raz couple through the purchase of her apartment from them. A friendship developed between the parties, and the couple took care of the deceased, according to them, out of good faith and genuine concern. After her death, the deceased bequeathed all her property, which included considerable money and assets, to the Raz couple.

The will was drafted after the Raz couple took the deceased to their home and hosted her. On the state of the deceased on May 1, 1981, before being taken to the respondents' home, the social worker wrote that the deceased "is dependent on this acquaintance, Mrs. Raz," and in conclusion, it was stated that "in light of the above, and since Mrs. Siegel is a lonely, isolated widow, hard of hearing and unable to take care of her daily needs despite still being able to move freely, she should be placed in an institution as soon as possible."

Another significant point raised by the appellant's attorney was that the respondents did not meet the condition in the will stating, "This will is subject to the fact that as long as I live, David Raz and Hanita Raz must provide for my residence and all my needs." However, it seems they were more concerned about their own needs than those of the deceased. Although they received a lot of money from her, unrelated to the will, they placed her in a public institution at the public's expense.

The Court's Decision on Failing to Meet the Will's Conditions

The court determined that genuine concern for the deceased’s overall needs required the respondents to place her, at her own expense, in an institution where the level of care matched her financial capability, given that she was wealthy and had entrusted a significant part of her wealth to the respondents.

Test of Explicit Indication of Will Translation

In CA 562/85 Avraham Mordechai Ehrnstein v. David Raz, PD 42(2) 418, the deceased bequeathed all her property to a couple who were strangers to her, and her acquaintance with them began when she made a sales transaction with them. The absence of an explicit indication that the will was translated for the deceased before signing contributes significantly to the concern that she did not understand the content of the will she signed.

The court in this case determined that if the translation was not explicitly noted on the will, then those requesting the will's execution must prove with evidence that it was translated for her. The court in the Ehrnstein case established that since the deceased had only "some understanding of the Hebrew language and knew this language to some extent," there is a real doubt whether she was indeed able to read the will as stated in the attestation of the will's witnesses. Since we do not find any mention of translating the will for the deceased into Yiddish, which she spoke”

Test of Consulting with a Lawyer

**Signing a Prepared Will vs. Drafting One on the Spot**

An important consideration is whether the will was pre-prepared or made in the presence of a lawyer, and who initiated the drafting of the will.

In the case of the estate of the late S.Y. (Estate Case (Tel Aviv) 5690/99), the deceased bequeathed all of his assets to his caregiver. However, in this instance, the court did not accept the objection to the will and ruled the following:

The court noted that the line between "undue influence" and "gratitude" is very fine and that courts have often struggled in their rulings to establish where this boundary lies. The court referenced the ruling in the Marom case, noting that, unlike in Marom, this was not a short-term acquaintance but a long-standing relationship that developed into genuine closeness.

– The deceased understood the nature of the will, and his mental and physical state was sound at the time of making the will.

– The initiative to make the will came from the deceased without any involvement from the plaintiff, who was unaware of the will's existence until a year after it was made.

– The witnesses to the will, professional attorneys, performed their duties faithfully. They ensured that the deceased indeed wished to bequeath his property to the plaintiff and confirmed that it was his true and free will.

– The objectors to the will presented contradictory factual claims: one being that the deceased was isolated and disconnected from his family, and on the other hand, they claimed to have taken care of him day and night. If the latter were true, it would undermine the possibility that the will was made due to undue influence by the plaintiff.

The Test of the Ability to Revoke the Will and Its Non-Revocation

In CA 2500/93 Yael Steiner v. The Mutual Aid Association of Central European Immigrants, the case involves an elderly woman who made three different wills. In her last will, she bequeathed all her assets to the institution where she lived, which was associated with an organization for European immigrants.

The organization, a non-profit that supported European immigrants, established nursing homes for their benefit, and the elderly woman lived in one of them. The second will she made was in favor of one of her caregivers, Ms. Yael Steiner, the objector in this case.

The objector claimed, among other things, undue influence. The District Court rejected the claim of undue influence, ruling that:

– **Independent and Opinionated Woman**: The District Court received a detailed picture of the deceased's personality, her relationship with the appellant, her relationship with the management of the nursing home where she lived for many years, and her relationship with the new management in the last year of her life. The evidence indicated that the deceased retained her mental clarity and independent will until her last day.

– **Independent Woman with Many Connections Outside the Nursing Home**: The deceased had connections with people outside the nursing home, despite her suspicion towards her surroundings. Even with her dependency on the appellant and her need for her services, she was not prevented from expressing opposition, protest, or complaint if she felt the need to free herself from the appellant's influence.

– Furthermore, before making her last will, and not in the appellant's presence, the deceased expressed her wish to a neighbor, Mr. Adler, to change her will. She also approached Ms. Ilana Kirshner, the organization's secretary, requested the second will, and informed her of her intention to change it.

– Thus, the evidence supports the conclusion regarding the deceased's relationships with others besides the appellant and points to the independence of her will, as evidenced by the affidavits and testimonies presented in court.

Approaches in the United States

In the United States, various approaches are found on this issue. Some determine that the existence or absence of undue influence should be decided based on the facts of each case, refusing to establish a general test. Others emphasize four cumulative elements required to establish the existence of undue influence:

1. A testator subject to undue influence.
2. A beneficiary who had the opportunity to exert undue influence.
3. A beneficiary who had the means to exert undue influence.
4. The result appears to be the outcome of undue influence.

Case of an Elderly Person Bequeathing Property to a Stranger

Still, the Claim of Undue Influence Was Not Accepted

CA 4284-91 Suli Steinbok v. Eli Mizrahi

This appeal concerns the will of the late Moshe Adler, who died childless and alone. The deceased bequeathed all his assets to his good friend, Eli Mizrahi, who took care of all his affairs in his old age.

Who is objecting to the will? The nephew, who claimed the will should be annulled and the Inheritance Law applied. It is worth noting that the nephew had no contact with the uncle he wanted to inherit.

"The deceased was indeed a lonely person, but he took care of himself and managed his affairs. The respondent was very close to him, and a friendship developed between them. The deceased saw the respondent as the closest person to him, as he expressed to the witnesses (the neighbor, Mrs. Bibering, and Rabbi Shmuel Glassner). No evidence was brought regarding the deceased's dependency on the respondent. All that was said in the testimonies was that the respondent would make various arrangements for the deceased (making payments, etc.), ensure he had hot food on the Sabbath, and that the deceased would often visit the respondent's workshop, which was near his home, and even help the respondent in his work. None of this in any way amounts to the deceased being dependent on the respondent. It was a beautiful relationship between the deceased, who was elderly and lonely at the time (after his wife's death), and the petitioner, who was, in fact, his neighbor and treated him in some respects as a son treats his father."

The Mental State of the Objector

**Circumstances Where a Person Can Be Completely Sane and Healthy but Still Absolutely Dependent**

This was demonstrated in the case of Mikashvili (CA 3828-98 Rachel Mikashvili v. David Mikashvili, PD 54(2) 337).

In this case, these were the facts:

Aharon Yashar Mikashvili passed away on June 5, 1994, at 87 years old. The deceased was a wealthy man. He inherited his assets, including real estate, from his father after the father's estate was divided between the deceased and his siblings, including the three sisters of the deceased—Malka, Rachel, and Rosa—who are the appellants before us.

In 1948, during a business trip to France, the deceased married Chava Goral. The couple had four children—David, Carmela, Liora, and Ronit. For a long time, the family lived in the deceased's parents' home, together with the appellants. The deceased's wife was not accepted by the appellants, and their attitude towards her was harsh, sometimes even violent. In 1964, after the wife renounced any rights to the deceased's property, the couple divorced.

Over the years, the deceased left the management of his business in the hands of the appellants. In 1984, he even gave a general power of attorney to appellants 1 and 2, and they used his money at their discretion.

In 1987, the deceased moved to live with the appellants. Shortly after moving to their house, on September 7, 1987, the deceased signed a will in the presence of a lawyer. The will was handwritten by the deceased in the appellants' home and in their presence.

In his will, the deceased bequeathed his property to the appellants, including their ID numbers, except for $300,000, which he bequeathed to establish a charity fund in memory of his parents, and $5,000 bequeathed to his son, and 100 NIS bequeathed to each of his three daughters.

The District Court ruled that

"The evidence showed that the respondents indeed had undisputed control over the deceased's lifestyle and his relationships with his children and wife. The court heard evidence…from which it can be learned…about his absolute isolation, weakness, and mental and economic dependence on his sisters.

Over the years, the respondents also acted to sever the deceased from his children… this separation [was not] due to the children's choice or their father's free will. On the contrary, the evidence showed that over the years, the deceased's children tried to strengthen or renew the connection between them and the deceased, but were met with a 'defensive wall' by the sisters who loathed them. This aversion probably stemmed from their aversion to the deceased's wife, who was, in their opinion, not suitable for the family. I believe I will not err if I say that only the son David 'managed' to penetrate this wall and establish a connection with his father; perhaps because he was the continuing son of the family (the respondents are unmarried)…

The deceased's lifestyle throughout his life, including before writing the will and even afterward, represented a very special relationship, a kind of matriarchy, which left him with no room to implement his own will. I concluded that throughout all these years, the deceased's free will was negated. He was operated by the respondents. In certain cases, he was even afraid to express his own will…".

Will to Strangers Cancelling a Previous Will to Children

Death Shortly After Drafting Wills

Aloni Case (CA 5640/92, Y. Aloni et al. v. Bauman, PD 49(5) 373)

In this matter, the objector to the will was the daughter of the deceased, Karl and Yona (Eika) Paletsko. In 1971, the deceased made mutual wills, bequeathing all their property to their daughter upon their deaths. Four years later, they canceled their previous wills and bequeathed all their property upon their deaths to the grandchildren of a person who had assisted them during the Holocaust.

The physical condition of the deceased at the time of signing the will was extremely poor. The husband died on February 25, 1985, four days after drafting the will, and his wife died on March 18, 1985, about a month after the will was drafted.

Six years after the will was executed, their daughter approached the District Court to annul the probate orders. The District Court accepted her request, leading to an appeal to the Supreme Court.

Key points of the case include

• The severe physical condition of the deceased at the time of drafting the will.
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• Aloni, the grandfather of the beneficiaries, summoned an attorney to draft the will and was present in the room when the deceased made the will in favor of his grandchildren.
• The deceased did not act to change their previous will until the meeting with the drafting attorney.
• The level of dependency of the deceased on Aloni.
• The judge did not believe "that the will, which deprived the sole daughter of the deceased (at least the sole daughter of the deceased woman) and granted the entire estate to the grandchildren, was made of the free will of the deceased."
• For five weeks preceding the signing of the will, the husband was hospitalized in several hospitals. Aloni arranged for his hospitalization, transfer between hospitals, and admission to a nursing hospital; he provided a financial guarantee for the hospitalization, visited the husband, and reported his condition to his sick wife. Aloni also maintained contact with the daughter of the deceased, showing a thorough knowledge of their needs and financial matters.
• Aloni even approached the Kibbutz "Sha'ar HaAmakim" during the deceased's lifetime to arrange their burial there. There was no evidence presented to the court that anyone other than Aloni had taken care of the deceased or even visited them.

Dilemma Between Special Trust Relationships and Exploitation

Lando Case (CA 2119/94, Landau v. Wein, PD 49(2))

This dilemma between special trust relationships arising from such assistance to the testator and the exploitation of those relationships for unfair influence was also raised in the Landau case. In that case, a mother bequeathed her entire estate to her son and excluded her daughter from the will. In early January 1987, when the deceased was about 88 years old, and only about three months after the will was drafted excluding her daughter and bequeathing everything to her son, the legal advisor to the government requested the Tel Aviv-Jaffa District Court to appoint a guardian for the testator.

The request was supported by a medical certificate from Dr. M. Ramot of a mental health clinic. The certificate described the testator: "One could have a conversation with her. She was also oriented in time and place. However, there were typical symptoms of organic brain syndrome … sometimes she did not recognize her son and people close to her. She suffered from hallucinations, thinking that strangers were wandering in her apartment … Given the described condition, it should be assumed that the woman's judgment is impaired and she may think unrealistic and delusional thoughts."

The date of the certificate was November 21, 1986, less than two months after the will's date. The file contains a letter from the same doctor to the legal advisor, in which the doctor complains that the respondent appeared at the clinic, "behaved extremely disruptively, shouted, pushed, forcibly entered the room" in complaint that the doctor issued a certificate about his mother's condition. The request for the appointment of the guardian was conducted before Judge H. Porat over several sessions, during which Attorney Ronal Heller was appointed as guardian. Requests for instructions were submitted and several decisions were given. From the complaints of the guardian about the respondent’s behavior and from the decisions, it appears that the respondent, who preemptively sold his mother’s apartment and brought his mother into his home, took control of her and her property through sophisticated manipulations.

In the court decision of January 10, 1988, the descriptions of the guardian about the respondent’s behavior were termed "hair-raising," and it was stated, among other things: "The essence of the matter is a description of a son who has completely taken over, mentally, physically, and financially, his elderly mother, and due to her condition, she does not dare to complain openly. However, there are many signs that she is suffering, both due to her condition and because of restrictions imposed by the son, such as on contact with her daughter, and because she is practically deprived of adequate medical treatment, due to the son's severe mental disturbances. The woman lives in the worst sanitary conditions, with the son not taking care of proper cleanliness.

The son uses various manipulations to prevent medical checks and treatments for his mother. The son engages in very strange actions to prevent the disclosure of bank accounts, property, and resources of his elderly mother, giving mysterious instructions to various entities (German compensation authorities and the National Insurance Institute in Israel) not to pay money or to pay it each time at a different bank branch, with the money disappearing without a known destination. The guardian’s work was practically investigative, and he heard in the different bank branches he visited descriptions of an elderly woman and her disturbed son, who signs documents and withdraws money until bank officials nod their heads when they hear the name Wein. The money given by the guardian as pocket money to the ward is apparently not used by the ward, and the guardian suspects that occasionally the mother is also beaten (on one occasion, the guardian hurried to the old age home following a phone call from the daughter, and when he asked the elderly woman what happened, she replied: ‘Baruch did nothing to me,’ without even being asked if Baruch had done anything. He noticed a frightened woman lying helpless in her bed)."

The Intertwined Threads Doctrine

In the case of Civil Appeal 4459/14, Anonymous v. Anonymous (May 6, 2015), the Supreme Court established the doctrine of intertwined threads, which means that different threads of various grounds can intertwine to lead to a comprehensive conclusion that reflects the full picture and is based on the totality of the evidence, rather than being strictly confined to a single ground for invalidity: "The answer lies in the District Court's perspective. It examined the issue of undue influence as a whole. This is the correct approach. The burden of proving this ground of invalidity rests with the person challenging the will (the respondent here). However, it should be remembered that evidence is often circumstantial (see, for example, the Marom doctrine on page 848). In our case, the respondent argued additional grounds for invalidity, such as lack of capacity and involvement in drafting the will. I believe that these grounds were correctly dismissed by the Family Court. However, different threads of different grounds—even if they could not establish an independent ground—can intertwine into layers that reinforce and substantiate the District Court’s conclusion. The undue influence that reaches the extent of nullifying the testator's free choice is a dynamic and broad test, akin to the spectrum of life. The District Court used the different threads to arrive at a comprehensive view reflecting the entire picture." (Emphasis added.)

See: CA 4459/14, Anonymous v. Anonymous (May 6, 2015), paragraph 7 of the judgment by Justice Handel. Also see: CA (TA) 48729-03-19 B. Y. P. v. A. P. (November 17, 2019); CA 39988-09-17 Sh. v. Sh. et al. (December 27, 2018).

The doctrine of intertwined threads means that for the purpose of adjudication, the court can consider the circumstances surrounding the drafting of the will as a whole. It should be noted that the doctrine of intertwined threads in the cited rulings primarily dealt with objections to wills and particularly its use in the context of undue influence.

Heir Bringing the Testator to an Attorney's Office

In the Shad Case, a situation was discussed where a son brought his father from the hospital to the attorney’s office, where the will (in favor of the son) was drafted, provided instructions to the attorney regarding the will’s provisions, and was present during the signing of the will.

After it was clear beyond even a slight doubt that the deceased fully understood what he wanted and made the bequest according to his own wishes, the court determined that the accompaniment of the ailing father by his son alone did not, by itself, indicate any undue influence.

In contrast, in the Atzmon case, Judge Geifman determined that undue influence by the plaintiffs seeking the will’s probate was present, among other circumstances, because they hastily brought their father to an attorney to draft a will.

In that case, the court was impressed by the actions performed, particularly the urgency of drafting the will, which was similarly described by the attorney who drafted it. The plaintiffs who sought the will’s probate accompanied their father to the attorney’s office, where the will was drafted at the time of its execution. One of them drove his father from home to the attorney's office, and the other, whose presence was not necessary, took a bus to the attorney's office and even took time off work specifically for this purpose. Only the son who was excluded from the real estate inheritance was not invited to the will’s drafting and was not informed by his siblings.

In the Goldman case, the District Court ruled that bringing the testator to an attorney known to the heir, even if the attorney had previously handled the heir’s affairs, did not indicate a ground for invalidity—neither under Section 30 nor under Section 35 of the Inheritance Law—provided that it was proven that the testator instructed the attorney regarding the content of the will.

Apparent Presumption Within Trust Relationships

It is necessary to distinguish between types of cases

The first type is when undue influence arises from the circumstances of the case, meaning a situation of inequality between the parties in mental, moral, or social terms. The second type is undue influence arising from the pattern of relationships between the parties, based on trust where such relationships generally grant one party a position of superiority over the other, with the undue influence meaning exploitation of the trust or dependency granted to the influencer. This category fits more with the definition of "exploitation" under Section 18 of the Contracts Law, although "exploitation" is based on the exploitation of distress and weakness, while undue influence originates from relationships of dependency and trust.

It should be emphasized that the division between categories is not so clear-cut. It may serve as a helpful test, but the main importance pertains to the specific circumstances of each case. According to equitable law, while in cases falling under the first category the burden of proving undue influence rests on the claimant, in cases falling under the second category, a presumption of undue influence is established, and then the burden of proof shifts to the party challenging the transaction to prove the absence of undue influence. However, in cases belonging to the second category but not falling within established patterns of clear undue influence, the party claiming such influence must present prima facie evidence of its existence, which would establish the presumption, and then the final burden shifts to the party disputing its existence.

Interpretation of the Will: Unreasonable Wording and Errors

• Interpretation of the will from its text and content (primarily unreasonable wording in the will or errors indicating improbability in wording or detailed reading of the will).
• Test of change in the testator’s wishes within a short period (proof of a different wish shortly before the drafting of the will).
• Signature of the testator in a different and unusual manner.
• Unclear will.