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Ha-azinu-Received an Inheritance Based on Secular Law

 

Question

My father was a frum but not very learned Jew. Thus, when his lawyer prepared his will he did so in accordance with secular law but in a manner that is not effective according to Torah law. The beneficiaries of his will are my older brother who is the bechor and I. We were allotted equal portions. When the will was probated, I received half of my father's assets. My brother is probably not aware that under Torah law he deserves two-thirds of the estate and not just the half that he received. Must I inform him of his rights or can I just keep what I received? I should add that my brother and I have a good relationship and perhaps he would say that I may keep what I received. But I prefer, if permitted, to just keep quiet.

Answer

In order to answer your question, it is necessary to introduce the concept that the Gemara calls mitzvo lekayem divrei hameis-there is a mitzvo to fulfill the wishes of the deceased.

One case in which the Gemara (Kesubos 69B) apples this concept is where a man left money with an agent with instructions that when his daughter becomes engaged (eirusin) he should use this money to pay for her dowry. The Mishna cites the authoritative position of R. Meir that the agent is required to carry out the instructions. Even though the person had passed away by the time of the engagement, and the daughter would not have received these funds through inheritance, the agent is required to use the money to pay for the daughter's dowry and not to give it to the heirs. Thus, we see that mitzva lekayem divrei hameis can supersede the rules of inheritance.

We note that the Rishonim prove from the Gemara (Gittin 15A) that this mitzvo applies even when the deceased issued his instructions when he was healthy and not mortally ill. As long as he did not rescind his instructions at a later date, they remain in place after his death.

Another important detail is the strength of this rule. The Rishonim (e.g., Mordechai BB 639, Ran Gittin) prove, based on the Gemara (Gittin 40A), that beis din forces the heirs (or an agent, if the possessions are in the hands of an agent) to carry out the expressed desire of the deceased. While there are opinions (see Machane Efraim zecheyo 29) who go even further and maintain that the recipient actually automatically acquires the possessions that the deceased commanded that he should receive, the consensus, and that is the ruling of the SA (Ramo CM 252, 2), is that this is not the case, and (for example) if the descendants fail to heed the deceased's instructions and before beis din managed to force them to surrender the asset to the designated recipient, they sold the asset to someone else and pocketed the proceeds of the sale, their sale is valid and they do not have to subsequently surrender the proceeds.

Rav Shmuel Rozovsky (Chidushei Rav Shmuel Gittin 279) proves that even though the recipient does not actually acquire the objects prior to his receipt of them, nevertheless, he has a monetary claim to the objects and may sue the heirs in beis din to surrender the designated asset to him.

A crucial issue is the nature of the assets to which this mitzvo applies. There are three opinions in the Rishonim on this issue. The basis for all these opinions is that we find situations where the Gemara (e.g., Gittin 13A) failed to apply the rule of mitzva lekayem divrei hameis. Therefore, it is clear that it is not a universal rule. The Rishonim thus sought to clarify when the principle of mitzva lekayem divrei hameis applies.

The first two approaches are both ascribed to Rabbeinu Tam. (His opinion is cited by many Rishonim including Tosafos in Kesubos 70A and Gittin 13A.) One approach is that it only applies to assets that were given to an agent with express instructions to give the assets to a designated recipient, as was the situation in the case we cited at the outset. Numerous Rishonim, including the Rosh, cite Rabbeinu Tam in this manner and adopted this approach.

The second approach agrees that the rule only applies to assets that were given by the deceased to an agent. However, this approach maintains that Rabbeinu Tam did not require that the instructions about how to distribute the assets were issued at the time the asset was placed in the hands of the agent. This opinion maintains that as long as the deceased gave instructions at any time about who should receive an asset that was held by an agent, the rule of mitzva lekayem divrei hameis applies. This approach is maintained by Rishonim including the Ra'avan and the Rashbo and others.

The Ramban cited the opinion of Rabbeinu Tam and disagreed. He offered a third approach that was adopted by many others. His approach is that there is no requirement that the asset be given over by the deceased to an agent. What is required is that the deceased leave clear instructions with his heirs or someone else about how to distribute the particular asset.

SA rules on this issue in two places. In one place (CM 250, 23) the Mechabeir cites both the approach of the Ramban and the second approach of Rabbeinu Tam without deciding which is authoritative. In the second place (252, 2), which is in the siman that is dedicated to the rule of mitzva lekayem divrei hameis, he rules the first approach of Rabbeinu Tam, that the rule applies when the asset was given to an agent with express instructions, and does not cite any other approach. It is noteworthy that both the Sema (252, 8) and the Shach (252, 4) add to the SA's ruling that it also applies if the deceased left clear instructions but did not give the asset to an agent. Thus, whereas the SA ruled the first approach of Rabbeinu Tam, the Sema and the Shach ruled like the Ramban.

It is clear that the answer to your question depends on whether mitzva lekayem divrei hameis applies. If mitzva lekayem divrei hameis applies then, even though you would not have received these assets under the Torah rules of inheritance, you would be entitled to them by virtue of mitzva lekayem divrei hameis, which supersedes these rules. Since we would force the heirs to surrender these assets to you if mitzva lekayem divrei hameis applies, you certainly may keep them if you already received them, as you did.

Furthermore, since your father left clear instructions in the will that he wrote, according to the Ramban mitzva lekayem divrei hameis applies. However, it might seem that according to Rabbeinu Tam mitzva lekayem divrei hameis does not apply since the assets were not given to an agent.

Your question was posed to the Binyan Tsion (2, 24), otherwise known as the Aruch Laneir. He understood, as above, that according to Rabbeinu Tam the recipient would have to return the extra amount he received to the true heir, according to Torah law. However practically, since there are many who side with the Ramban, even though the opinion of Rabbeinu Tam is the authoritative approach the recipient may keep what he received since he can say kim li like the Ramban.

He cites the Knesses Hagedolo (CM 25) that even as far as the dinei shomayim are concerned, one who is entitled to an asset based on the principle of kim li, may keep what he received. He further cites the Mahari Ibn Leiv (2, 39: 3, 43) who ruled that if the assets were already received by the heirs, the designated recipient could not force the heirs to surrender the assets to him. However, he ruled that the recipient may keep them if they came into his possession.

In his case, just like yours, the Torah heir raised no objection. He rules that this is an additional reason the designated recipient may keep the asset, because we may assume that the heir wanted to fulfill his deceased father's wishes. We note that many maintain that the mitzvah to honor a parent applies in this situation. Therefore, you can assume that your brother would want to give you the extra portion even if he knew that as the bechor he is entitled to a double-portion.

Another major poseik who addressed your question is the Achiezer (3, 34: 4, 66). He cites the Binyan Tsion and adds that he thinks that even Rabbeinu Tam agrees that the designated recipient should receive the asset even if it was not physically given over to an agent, since he is entitled to it under secular law. He explains that he does not mean that it is because of the rule that dena demalchusa dena. Rather, it is because an asset that someone is entitled to under secular law is no worse than an asset that was given to an agent.

Perhaps his rationale is like the Maharsham (2, 224) who also ruled that the designated recipient may keep the assets. He bases his ruling on the explanation of the Ritvo (Gittin 13A) and the Rivash (res 207) that the reason Rabbeinu Tam required that the assets be deposited with an agent is because doing so shows that he was serious about giving the asset to the recipient. The Maharsham argued that if one makes a legally binding will, he certainly means what he wrote and thus even Rabbeinu Tam agrees that mitzva lekayem divrei hamei applies.

We note that a number of other Poskim concur with the Achiezer. Some cite him and others ruled that way independently.

Another major poseik who ruled like the Achiezer but for a different reason is Rav Moshe Feinstein (Iggros Even Ho'ezer 1, 104). In his case a woman wrote a will that granted some of her money that was deposited in a bank account to tsedoko and did not bequeath it to her husband who was her legal heir under Torah law. He proves a huge chiddush: since the assets were going to be given to the tsedoko under secular law since the will was destined to be probated in secular court, even under Torah law the assets automatically went to the tsedoko upon her death (and did not require a kinyan), thereby circumventing the Torah's laws of inheritance. According to Rav Moshe you certainly may keep the assets you received.

In conclusion: You certainly may keep whatever you received and do not have to say anything to your brother.

 

 

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