“It is a mitzvah to fulfill the instructions of the deceased.” The Gemara mentions this principle several times (Gittin 14b-15a; see also: Kesubos 70a; Taanis 21a) in the name of Rabbi Meir. One of the significant sources for this concept, as we will see below, is the instruction given by Yaakov Avinu to his sons. The concept is also accepted in halacha.
While it is a mitzvah to follow instructions of the dead, the scope and the force of the mitzvah are not clear and may raise numerous questions and dilemmas.
What is the source of this mitzvah to comply with the deceased’s instructions? Is the principle limited to matters of property and inheritance, or does it apply even to other areas? Are the instructions enforceable in Beis Din? Do we follow instructions of the deceased even contrary to Torah law? And is the principle relevant for a secular will and testament?
These questions, among others, are discussed below.
Source of the Mitzvah
Rabbi Meir does not provide the source for his statement whereby there is a mitzvah to follow the instructions of the deceased. Later sources suggest possible sources for the concept, the foremost of which is found in Parashas Vayechi.
Before his passing, Yaakov Avinu gathered his children together, and instructed them: “He instructed them, saying: I am about to be gathered to my people. Bury me with my ancestors in the cave in the field of Ephron the Hittite” (Bereishis 49:29). The Torah proceeds to write that the sons of Yaakov honored their father’s wishes to the last detail, including a seemingly superfluous reference to the initial instructions: “His sons did so for him, as he had instructed them” (Bereishis 50:12).
The Midrash Ha-Gadol bases the obligation to carry out the instructions of the deceased on this seemingly superfluous verse: “From here the Sages stated: It is a mitzvah to follow the instructions of the deceased.”
Some write that Yaakov’s instructions actually teach us the opposite: the fact that Yaakov insisted on Yosef making an oath to carry out his father’s command suggests that the mitzvah does not apply to what he asked for, which is outside the area of actual inheritance (Shut Shevus Yaakov Vol. 1, no. 168).
It is, in fact, possible that following the deceased’s instructions is an enactment of the Sages that does not have any foundation in Torah sources. This is implied by the ruling of the Mordechai (Bava Basra 626, citing Rabbeinu Efraim), who writes that the principle only applies to instances in which there is no option of making a legal transfer of property. In order to give a person the right to decide how his inheritance should be divided, the Sages enacted the obligation to follow his instructions. This of course contrasts with the above Shevus Yaakov since Yaakov’s instructions did not relate to his inheritance.
Boundaries of the Mitzvah
The imperative to follow the deceased’s instructions applies within specific boundaries. The Tashbatz (Vol. 2, no. 53) explains that the obligation applies specifically to inheritors:
“First of all, I tell you that your use of the obligation to follow the instructions of the deceased, which you apply to every person, even somebody who is not one’s father, is misplaced. Not for all matters did the Sages state that there is a mitzvah to follow the deceased’s instructions, for a person does not become a prophet, and nor a king or a prince, in his hour of death, so that he should be able to instruct the living to fulfill his command. [On the contrary] – there is no power on the day of death. Rather, their intention is only that a person instruct his heirs concerning his estate. Since his possessions are his, he can given instructions relating to them, and all [his inheritors] are obligated to follow them.”
A similar idea emerges from a ruling issued by Rabbeinu Tam, who writes that the mitzvah of heeding the deceased’s instructions does not apply to a convert to Judaism. Concerning a ger tzeddek the halachah cannot apply, because in Torah inheritance law he does not bequeath his possessions to his non-Jewish family. Since this is the case, “his authority is no longer upon his possessions,” and the mitzvah does not apply.
Instructions in Matters Beyond Property
Based on this line of reasoning, some authorities write that the mitzvah to follow the deceased’s instructions applies only to his property. As mentioned above, the Shevus Yaakov writes that Yaakov’s instructions could not obligate his children to bury him in the ancestral burial site, because the mitzvah applies only to inheritance.
The Shevus Yaakov (Vol. 1, no. 168; cited in Pischei Teshuvah, Choshen Mishpat 252:1) addresses a case in which a woman instructed her children that in case of dispute, the case should be resolved by the arbitration of a particular individual. The children, who wished to honor their mother’s wishes, made a tekias kaf (a form of oath) to abide by the arbitrator’s rulings. After her death, a dispute broke out among the inheritors, and one of them decided that the selected arbitrator was not worthy of his title and claimed that his mother’s instructions concerning arbitration are not binding.
Shevus Yaakov upholds the claim in principle: Only instructions concerning the mother’s own property can be binding, and not general instructions unrelated to the property itself. Nonetheless, by combining an obligation “beyond the letter of the law” (lifnim mi-shuras ha-din) to follow the instructions, with the oath made by the inheritors, the Shevus Yaakov ruled that the instructions appointing an arbitrator remain binding.
A question of similar nature is raised by the Noda Bi-Yehudah (Tinyana, Even Ha-Ezer no. 45) concerning a man who left instructions that his daughter should not marry a particular man (his brother). The father was deliberate in his instruction, and when the daughter (and many related parties) wished to proceed with the forbidden wedding the question was brought to the Noda Bi-Yehudah. His response was that because the instruction does not pertain to the deceased’s property, it is not binding.
He makes a distinction (based on the Ritva) between an instruction that the instructed party is able to carry out, and an instruction to do something that there is no ability to carry out. Had the deceased instructed his wife – who is due to receive his property as her kesubah – that she should not give the daughter any dowry should she marry the man in question, that instruction would be binding. However, because the wife has no jurisdiction over her daughter (who can marry her uncle even against her mother’s wishes), such an instruction is certainly not binding.
Moreover, the Noda Bi-Yehudah adds that even if she had such jurisdiction, the deceased’s instructions only carry weight when pertaining to his property. Concerning matters beyond his own property, the deceased cannot instruct others what to do or how to behave.
A quite different approach is taken by the Tashbatz (Vol. 3, no. 130), who writes that the mitzvah can apply to matters beyond the actual inheritance. In reference to a deceased father’s instruction that his son should marry a particular girl and his daughter a particular boy, he writes: “If he instructed that so-and-so should marry so-and-so and so-and-so should marry so-and-so, it is a mitzvah to follow his instructions – if they wish to inherit that which their late father left them.”
The connection between fulfilling the deceased’s instructions and receiving one’s portion of inheritance in only mentioned by the Tashbatz. Thus, his principle does apply to matters beyond inheritance, but is confined to those who inherit the deceased. The obligation to follow the deceased’s wishes draws from the inheritance: If a person receives part of an inheritance – and wishes to keep it – he must follow the deceased’s wishes even in other matters.
Yet, normative halachah apparently follows the opinions of the Shevus Yaakov and the Noda Bi-Yehuda and not the Tashbatz, and an inheritor who has a legitimate reason to refrain from fulfilling the deceased’s instructions can rely on these opinions.
Distinct from Torah Law
What is the halachah when the deceased instructs his inheritors to transfer the inheritance to another – somebody who does not inherit according to Torah law?
The Maharit (Vol. 2, Choshen Mishpat no. 6) addresses this question, and writes: “How is it possible that there should be a mitzvah to go against Torah law?”
Most authorities reject this argument, opining that even such instructions are binding upon inheritors. The Ketzos HaChoshen (248:5) points out that accepting the Maharit’s ruling will limit the concept greatly, for in most cases the deceased’s instructions involve an alternative allocation of his estate. He concludes that the principle applies even to such cases.
The reason for this is that the mitzvah to follow the deceased’s instructions remains a mitzvah – an imperative or an obligation – and not a legal transfer. Notwithstanding a deceased’s instructions to the contrary, upon a person’s death his property transfers to the Torah inheritors – and to no other. Torah inheritance law is thus fulfilled. The mitzvah subsequently obligates those inheritors to observe the wishes of the deceased concerning the inherited properties.
Although not a legal transfer, it is important to note that the obligation to heed the instructions of the deceased is enforced by Beis Din (see Beis Yosef, Choshen Mishpat 252).
Deposit with a Third Party
In practice, the principle whereby an inheritor must follow the instructions of the deceased is limited by the ruling of Rabbenu Tam (Tosafos, Gittin 13a; Sefer Ha-Yashar 106, 108) that instructions relating to property are only binding if the property is in the hands of a third party.
The Ritva (Gittin 13a) explains that this condition is required to ensure the seriousness of the instructions (see also Rivash 207; see, however, Mordechai, Bava Basra 530).
This condition is not accepted by all authorities. The Ramban (Gittin 13a), for instance, rejects the requirement.
However, the Shulchan Aruch (Choshen Mishpat 252:2) makes his ruling clear: “It is a mitzvah to follow the instructions of the deceased, even if he was healthy at the time of instruction – but only on condition that he deposited the relevant properties with a third party for this purpose.”
An important question is how this condition can apply to an inheritance of land (and indeed, the Ramban rejects the condition on account of the problem of how land can be deposited). This matter is debated by Rabbi Heschel of Krakow and the Chelkas Mechokek, in an exchange of letters printed at the back of Shut Maharik (and cited by Rabbi Chanoch Dov Padwa in his Cheshev Ha-Efod, Vol. 2, no. 106).
Rav Heschel ruled that the mitzvah does not apply to land, since land, unlike movable items, cannot be deposited with a third party. The Chelkas Mechokek, however, argued that the mitzvah applies to land where a third party was given control over the relevant properties.
The idea of a third party being appointed over the property is echoed in a ruling of the Chasam Sofer (Chosehn Mishpat 142), who writes that when a land property is bequeathed to a wife, registration of the property in the wife’s name is equivalent to depositing the property with a third party.
We find a similar idea in the Gemara (Gittin 40a), which states that a maidservant must be freed if her master so instructed before his passing. Although the maidservant was not deposited with a third party, the Rosh (Kesubos 6:22; see Ketzos Hachoshen 252:4) explains that her control of her own person is no worse than the holding of a third party (see Teshuras Shai, no. 75, who applies this concept to land properties).
According to these sources, control of the relevant property is equivalent to its deposit with a third party.
Validity of a Secular Will
A crucial and much-debated ramification of the dispute relates to the validity of secular wills.
Although a secular will performs no halachic transfer of the properties in question, some authorities – most notably the Achiezer (Rabbi Chaim Ozer Grodzinsky; Vol. 3, no. 34) – maintain that the will is enforceable based on the mitzvah to fulfill the instructions of the deceased. Even if the properties were not deposited with a third party, the authority of secular courts can be seen as sufficient to fulfill the condition of deposit with a third party.
There is some debate over whether Rabbi Chaim Ozer accepted this argument as sufficient in itself to make a secular will binding, or whether he only used it in conjunction with additional halachic arguments.
An important ruling on the issue is given by the above-mentioned Cheshev Ha-Efod, who concludes that because a secular will includes the appointment of an executor, instructions therein are considered binding even according to Torah law since the executor serves the function of the third party (see, however, Shut Maharia, Vol. 2, no. 86; Pischei Choshen, Chap. 4, note 85).
Rabbi Moshe Feinstein (Iggros Moshe, Even Ha-Ezer Vol. 1, no. 104-105) also maintains that a legal tzavaah is binding according to Torah law.
It requires at least an entire separate article to do justice to the question of secular wills, and perhaps we will write one in the future. For the present article, it suffices to mention that it is certainly not recommended to rely on making a secular legal tzavaah alone instead of a halachic one. Although several authorities validate such a tzavaah based on the mitzvah to follow instructions of the deceased, others object to this. Relying on the principle has indeed led to many unfortunate episodes.
In dividing the inheritance, it is important to ensure that a will is made up in accordance with Torah law (as well as secular law), so that the instructions therein will remain undisputed.
It is a mitzvah to follow the instruction of the deceased. However, according to many authorities, the full force of this instruction is limited to the inheritance: Even when a person did not transfer the inheritance or part of it from one heir to another, his instruction to do so must be honored. This does not apply, at least not with the same force, to other matters.
Even concerning the transfer of inheritance, the full force of the principle applies unequivocally only where the property was deposited with a third party, indicating the seriousness of the instruction. Based on this, some authorities give halachic validity to a secular will, which expresses the will of the deceased with the gravitas of the legal system.