D. an oral will is the least common situation, however, it may be valid, under certain circumstances that are specifically dictated by the law.
Seven conditions are to be proved in court:
- the decedent was a “deathly ill” person while making the will;
- the decedent made the will in the presence of two witnesses;
- the decedent had a specific intention to make a will under the circumstances;
- both witnesses heard the decedent’s words;
- the witnesses wrote a protocol (as soon as they could);
- the witnesses signed the protocol;
- the protocol was submitted to the Inheritance Registrar;
The first question to be evaluated by court is - whether the testator was “deathly ill” or “in a deathbed”. The Israeli Court (Civil Appeal 516/73 Omar V. Cogut ) set a two- folded evaluation process: an objective element – that the decedent actually faced death; and a subjective element – that the decedent had a subjective feeling that he is going to die.
In cases of an oral will, the court considers, among other factors, the age and the medical situation of the testator. Whenever the decedent passed away shortly after making an oral will, the objective element is apparent. The subjective element can be inferred from the decedent’s behavior, as witnessed in court.
It is important to note, that the law dictated an expiry date for an oral will: an oral will is invalid within one month after the circumstances to its making are gone and the testator is still alive.
Submission of a will - A witnessed will, a handwritten will and a will in the authority may be submitted by the testator to the Inheritance Registrar in Israel. The submission can serve as an allegedly evidence that the decedent made the will and that it was made in the day of submission, at the latest. The testator can, at any time, receive back the will that was submitted to the authorities as described.
The Succession Regulations describe the procedure of submitting a will to the Inheritance Registrar. One of the conditions is that the testator himself submits the will. Many foreign residents choose not to submit a will as described above, and instead they instruct their lawyer in Israel to keep a copy of the will (while keeping records of the lawyer’s details in their country of residence).
However, it should be noted, that the fact that the will was kept in the lawyer’s office does not in itself act as an evidence that the testator made the will. The will is validated by court or by the Inheritance Registrar in the regular procedure and if it is legal in its form and substance.
Will annulment – the testator may annul his will, either by a specific declaration that is done by one of the ways to make a will, or by destruction of the will. A new will is normally regarded as an annulment of the previous will, to the extent that the new will’s stipulations contradict those of the previous will, unless the new will has nothing but an addition to the previous will.
Validity – the will in itself does not grant any rights and cannot be used as a will, unless a court order has declared it to be valid by law.
As a general rule, a will made by a minor or a person who was announced as incapacitated is void. The same rule applies to a will made at the time when the testator was not able to understand its nature.
Any stipulation in a will that annuls or limits the testator’s right to change or cancel the will – is void. The same rule applies to a stipulation in a will that is subject to the decision of another person, who is not the testator.
A stipulation in a will that was subject to a threat, coercion, unjust influence, deceit or fraud – is void. That, unless it is proven that the testator knew of the deceit or mistake or that the coercion, threat or unjust influence passed and a year later the testator did not cancel the will, though he was in capacity to do so.
A mistaken stipulation is void as well, unless the court can clearly determine what was the meaning of the stipulation without the mistake. A scribal error may be corrected by the court or the Inheritance Registrar, if the true intent of the testator can be clearly determined.
Where it is impossible to determine by a stipulation who is the beneficiary or what is the asset granted or if the stipulation cannot be understood – the stipulation is then void.
If a stipulation or part of the will is void, the rest of it may be deemed valid, unless the court determines that those other parts are strongly connected or that the testator would not wish to validate the will without that part or stipulation.
A stipulation in a will that its execution is illegal, immoral, or impossible – is void. If an illegal, immoral or impossible stipulation is a condition to an entitlement (or obligation) under the will, the stipulation is then void, while the entitlement remains valid.
Interpretation – a will is interpreted by the court according to the deliberation of the decedent as it appears from the will, and to the extent that it is not evident from the will itself – as it is evident from the circumstances. A will that may bear several different interpretations, the interpretation that affirms the will is preferred upon an interpretation that annuls it.
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