"Death is the one appointment we all must keep." Death is an inevitable part of life. Why is writing a will mandatory? What will happen if a will is not prepared? How can parents save their children from transgressing the Torah-prohibition of theft? When does our hard honestly earned money become (Koheles 5:12) ‘Wealth kept by its owner to his detriment’? Why can’t children be simply trusted to properly divide their inheritance? Is a court order an acceptable halachic division? What are common pitfalls in wills? What issues arise from giving everything as a gift during one's lifetime? What is the best option for drafting a will? What is a 'Half-Male Document'? Can a defective will still be halachically valid?
Inheritance in the Torah
In this week's parasha (Bamidbar 27:8-11), we learn about the order of inheritance: “If a man dies and has no son, you shall transfer his inheritance to his daughter. If he has no daughter, you shall give over his inheritance to his brothers. If he has no brothers, you shall give over his inheritance to his father's brothers. If his father has no brothers, you shall give over his inheritance to the kinsman closest to him in his family, who shall inherit it.” These laws are extensively discussed in the Shulchan Aruch (CM 276-280). This week we will focus on the importance of drafting a will during one's lifetime, and how to do so according to Jewish law. We will also discuss what happens with a legally sound will which does not conform to the Torah’s halachic requirements.
Kosher Gelt
Torah law is very different from state law, both in Israel and worldwide. Jewish inheritance laws transfer one’s estate according to the above-mentioned hierarchy, while secular courts divide it quite differently. This leads to severe Torah prohibitions because anyone holding assets which halachically belong to a different person commits a severe transgression of theft. Which parent does not want to ensure their children uphold the Torah’s commandments?
Imagine how distressing it is for the soul of a deceased parent to see that their honestly earned wealth caused transgressions for their children! Even if part of the estate is designated for tzedakah to benefit them in the Next World, a will that is not in accordance with Jewish law, will earn them -- not merits, but transgressions -- and be a source for everlasting distress.
To prevent this, there are two recommended solutions:
- Draft a legally valid will in the state in which the assets are located, explicitly stating that the inheritance should be divided according to Torah law.
- Draft a valid halachic will detailing the desired property division, while simultaneously preparing a legally valid will to ensure the assets are divided as specified.
Option B is advisable even where local laws already require asset division that aligns with one's wishes and complies with halacha.
It is also very important to speak to children clearly about their inheritance, express your wish that they do not fight over it, and require that everything be managed according to Torah law (i.e., the order of inheritance as specified in the Torah, or a valid Jewish will) and not look for halachic loopholes or legal maneuvers to change things.
Trusting Children to Act According to Torah Law
Is a will truly necessary? If children agree to act according to halacha and be nice to one another, why is a written will necessary? Can’t good family relationships withstand all storms?
Chazal teach us in Chagigah 11b that in two areas one is never trusted: theft and moral indiscretion. This teaching means that people, as human creatures, have these weak spots, no matter how moral and spiritual they may be. Every human being, by nature, is inherently unreliable in these areas. However, the Gemara highlights a significant difference between the two. While immoral conduct is a constant danger even in absence of opportunity, the urge to steal only arises when the opportunity presents itself, not beforehand.
This distinction explains why individuals who are generally honest and trustworthy might fail when tempted by the prospect of acquiring a large sum unjustly. Splitting an inheritance is a test, without which, as a rabbi once remarked, one cannot be considered truly honest.
The Torah's first mention of a topic often sets the tone for how it manifests throughout history. Inheritance is linked with quarrelling brothers, as illustrated by the story of the first brothers, Cain and Hevel. According to the Midrash (Bereshis Rabbah 22:16), their attempt to divide the world between themselves resulted in an inheritance dispute that led to the world’s first murder.
This underscores the profound importance of establishing the most stringent legal and halachic frameworks to prevent familial discord and transgressions.
Why Honest People Steal
The Gemara tells us (Bava Basra 165a): "Rav Yehuda said in the name of Rav: most people commit theft, a minority commit sins of sexual immorality, and everyone commits sins of slander.”
The Rashbam questions the assertion about theft. How can it be said that most people steal? One cannot say the majority of population break into other people's homes and steal their property. He explains that the Gemara is not referring to obvious theft. The Gemara is referring to is minor theft, or justifying monetary misdeeds, especially in business. People often rationalize dishonest actions to themselves: marketing a product at an unfair price is common practice, not paying the full amount to a seller is permitted because the product has defects, etc.
The Gemara's message is that even if most people are generally conscientious and avoid touching others' property, their conscience only holds up until they start justifying their actions. Inheritance is particularly prone to such justifications. Heirs often feel that the assets rightfully belong to them, each child convinced that their parents intended the division to favor them, especially when there is some reason to support their claims.
Preserving Family Harmony
This natural tension linked to inheritance is present even during the lifetime of the one bequeathing, and certainly afterwards. The Gemara provides interesting proof to this: in the pasuk warning not to heed temptation to worship idols the Torah refers to specific relatives who might tempt a person (Devarim 13:7) on of which is: “Your brother, the son of your mother”. The Gemara asks: why does the Torah specifically mention a half-brother from the mother and not all brothers? Is there no concern that a full brother might also try to entice one to worship idols?
The Gemara answers with an amazing insight: sibling rivalry is a natural phenomenon, a built-in aspect of the family unit. Therefore, when a brother suggests something, the suggestion is suspected as not innocent. Perhaps his brother wants him executed by the court or otherwise eliminated so that he can receive a larger share of the inheritance? The chance of one brother enticing another brother to serve idols is therefore less than the enticing of a half-brother from the mother, with whom he is not supposed to share an inheritance. The inheritance is such a fundamental aspect of the brotherly relationship that it pops up in every circumstance.
The same is true for mother-in-law and daughter-in-law relationships. Every culture has sayings about the strained relationship between the two: "A mother-in-law's love is like a thorn; it pricks from afar”; “A mother-in-law’s jealousy is a fire that’s hard to extinguish." Although logically, the daughter-in-law should be appreciated by her mother-in-law as the dedicated wife of her beloved son, every culture expresses the hidden tension between the two, which too often, turns to overt hostility and real hatred.
The Gemara states that the daughter-in-law / mother-in-law relationship is naturally strained, which results in rendering a mother-in-law’s testimony unfit [even in cases for which women and relatives’ testimony are generally accepted]. Why is this? What is the root of this seemingly baseless hatred?
The reason for this, explains the Gemara, is that subconsciously, the mother-in-law sees her daughter-in-law as her husband’s heir. After his death, the daughter in law will receive (through her husband) all of the mother in law’s property, leaving nothing for her.
To ensure those deep-seated feelings are not aroused, one must do everything to guarantee that nobody will be cheated. A halachically and legally valid will does just that. Then, when the brother’s or mother-in-law’s future is secure, all parties are free to love each other peacefully. Brothers can enjoy their brotherly love, and mothers-in-law can love their daughters-in-law uninhibited.
Ignoring our natural tendencies or hoping they won’t manifest in “our family” is sweeping the problem under the carpet. Unaddressed problems tend to fester and explode when left to their own devices. When it comes to inheritances, we cannot underscore enough the importance of a will. Here, the rule of “The better the fences, the better the relationships” is more than 100% true. To ensure the future cohesion of a family, prevent transgressions, and future merits, one MUST draft a legally AND halachically binding will, well before old age.
Common Will Defects
The most common defects in a will are associated with linguistics: a will that speaks in terms of ‘bequeath’, ‘splitting my estate’, or ‘inheritance’ creates a will riddled with defects. This is because one cannot invent a new sequence of inheritance once the Torah has laid it out explicitly. In this kind of will, no daughter or adoptive child can receive anything. The only possibility of transferring assets to a daughter or adoptive child will use the term “gifting” (Bave Basre 8:5).
Even the term "I command" is problematic. In certain situations, it might be seen as a directive to fulfil the wishes of the deceased, not a transfer of ownership, rendering the will halachically invalid. Only phrasing that indicates a transfer of ownership or at least gifting or committing can make a will valid.
Another common issue is the phrase "I transfer my property after my death at 120 years." All of a person’s assets pass to the heirs at the moment of death, and nothing can be passed afterwards. This results in the practice of giving gifts at the very last moment of life. [An interesting case occurred when a wealthy man married a second wife in his old age. The new wife set her sights on his considerable wealth and wanted to disinherit his devoted only son. When the man fell ill, his son tried calling his father every day, but she always answered the phone and said he couldn’t talk. Even when the son tried to visit, she would prevent him from entering the house. She began poisoning her husband against his son – that he didn’t care about him and never visited or called. After thoroughly brainwashing him against his son, she ensured he wrote a will bequeathing all his wealth to her after his passing, and disinheriting the son. After the father’s death, the son proved to the judge that he had tried to visit and how the wife had prevented it. However, the judge said he couldn’t change the will, despite understanding the son’s position, because he needed a clear legal argument. Rabbi Henkin advised the son to argue that the will stated the inheritance would go to the wife after 120 years, but until then, she was not allowed to touch the funds. Indeed, the judge accepted this argument and ruled that if the wife did not reach an acceptable settlement with the son, she would be unable to touch the inheritance for the next 120 years, at which point the will would be fully enacted. The wife’s arguments that it was a classic Jewish expression referring to the day of death were of no help. This example highlights how a written will can be manipulated, and that the courts will not always rule according to the deceased’s intentions.]
Another issue is that when we sign a will with a lawyer, the witnesses who sign it are not always halachically valid. Sometimes the testator’s signature can help, but not always.
Gift During Lifetime
The method that is effective is gifting during one's lifetime. However, the problem with dividing the property while alive is that the testator may no longer be able to change the will, or they may need the money and the heirs might evade releasing the funds to them. For this reason, it is suggested to phrase it: "I transfer my property one hour before my death, and I can retract this gift as long as it has not been actualized." This terminology creates an excellent will that can transfer tangible assets, such as real estate, movable property like vehicles, household items, store merchandise, and more.
However, even with this wording, there remains a problem with future assets that are not yet in the testator's possession: funds in the bank are considered by some authorities as debts the bank owes the owner, and where it is a Jewish bank with a heter iska, some believe that half of the money in the bank is a deposit, which can be transferred, but the other half is a loan. Also life insurance policies, pension funds, and some investments are halachically considered assets that have not yet come into existence. Therefore, even gifting is not a full solution.
Make it a Debt
The classic solution for wills is "transfer through obligation." In this type of will, the testator states that they wish to divide their assets according to the Torah’s hierarchy or in some other manner, but that they owe certain people a large sum of money – one that far exceeds the inheritance's value. There is a condition attached to the debt: if the heirs agree to divide the inheritance in the specific manner that is detailed in the will, the debt is nullified and canceled. Additionally, there is a condition that if the testator decides to write a different will, the debt is also nullified and canceled.
One documents that is based on this mechanism, is a document called "Shtar Chatzi Zacher" (Half-Male Document) which was commonly used in Ashkenazi communities, as noted by the Rema (EH 108:3; CM 281:7). In this document, the father acknowledges that he owes his daughters an amount greater than the value of his assets. However, the debt includes a condition that if the heirs voluntarily divide the inheritance so that the daughters receive half of what the sons get, the debt is nullified and canceled. The purpose of this document is to fulfill the father’s desire to provide for his daughters, in a manner that is in accordance with Torah law. Thus, the sons have two options: either demand their full share of the inheritance, in which case the daughters collect the entire inheritance as a debt, or as will almost certainly will happen, is to divide the inheritance so that a daughter receives half a share and a son a full share, effectively nullifying the debt.
Issues that Affect a Will’s Validity
Many factors can render a will defective, but halachic considerations might still validate it, leaving issues open to debate. When each heir consults their own rabbi, who interprets the situation differently, it can lead to conflicts among siblings. Common issues include:
- A chronically ill person or one who fears death might be able to gift their assets.
- There is a mitzvah to fulfill the wishes of the deceased, but this rule does not apply universally. In most cases, it applies when funds have been entrusted to a third party. Thus, many authorities believe heirs are obligated to fulfill the will concerning bank funds.
The challenge in these cases is that nearly every situation is subject to halachic debate, with some authorities supporting one view and others another. When each heir has a halachic authority advocating for their entitlement, it leads to, at the very least, feelings of bitterness and resentment, which we want to avoid at all costs.
To ensure a will is free of defects and 100% valid both halachically and legally, it must be drafted with the expertise of both a halachic and legal authority. Failing to do so can cause family discord, unfair and sinful asset distribution, and pervasive bad feelings. Readers, beware.
Summary
This article aims to provide an overview and understanding of the importance of a halachically valid will. Such a will not only preserves harmony within the family but also upholds mitzvah observance and maintains loving relationships. We explored various terms and issues, noting that almost every topic has differing opinions, which can cause significant problems as each heir claims they deserve more.
While we provided a broad outline of the principles for solutions, the complete resolution lies in consulting with a competent halachic and legal expert who understands the complexities and knows how to draft a will that is valid according to all opinions. Our beis din provides this service. One can contact the beis din by e-mail at [email protected] or by phoning 972-2-502-3637 between six thirty and eight thirty PM Jerusalem time, Sun-Thurs.
