“ג וְיִשְׂרָאֵל, אָהַב אֶת-יוֹסֵף מִכָּל-בָּנָיו–כִּי-בֶן-זְקֻנִים הוּא, לוֹ; וְעָשָׂה לוֹ, כְּתֹנֶת פַּסִּים”
“Now Israel loved Joseph more than all his children, because he was the son of his old age; and he made him a coat of many colors”
The Torah (Genesis 37:3) tells us about Jacob’s (Israel’s) preference for a certain son named Joseph. We all know the result of this preference, which caused the selling of Joseph and subsequently so much pain and distress to both father and son.
History is supposed to help us build a better future by teaching us lessons from our past mistakes and through understanding how to make better decisions in the future. However, as clear as it should be, we human beings are not good learners from past experiences. A very good example is the case presented in the Supreme Court (בע”מ 4990/12), which was decided on November 13, 2012 by the Honorable Judge Mr. Handel (born in the US and who made Aliya in 1983).
The regular procedure in court is that an inheritor asks a court or a Rabbinic Court (or the Rasham Hayerushot) to have a testament (will) certified by the court (Bakasha Le Kium Tsavaa) after the testator’s death.
The case:
Our case deals with a request by one of two brothers (the inheritors) to have a testament (will) certified by the court – and the opposition presented by the other brother.
The case was first introduced in 2007 in the Family Court in Ramat Gan and decided by the Honorable Judge Mr. Gaifman in favor of Mr. Z – in spite of the opposition presented by his brother, Mr. M, who lost the case. As a result, Mr. M (the Applicant) appealed in the Appellate Court. Losing again, the Applicant asked the Supreme Court to review the case in a last chance to have the testament made by his diseased mother revoked, changed or sentenced as ‘null and void.’
The 13-page decision, written by the Honorable Mr. Handel, is a lesson in family conflict, on human nature, and on emotional pain due to discrimination. In my opinion, this case should never have gone to the courts, but instead to a panel of mediators and psychologists.
There is no controversy regarding the fact that the testament strongly and clearly discriminated between the two brothers. The mother left each of them a piece of land, but where Mr. M received land evaluated in 2001 (when she wrote her will) of around $2.400.000, Mr. Z received a piece of land evaluated at around $ 200.000 only – meaning that Mr. M. received 12 times more. A substantial difference indeed.
Mr. Z tried to convince the courts that his diseased mother had written her will out of ignorance of the facts regarding the value of the land. He cited “wrongful or unfair influence” by his brother, but every one of his arguments contesting his brother was repelled in the different courts.
In the background, there had been years of conflict among the family members – including violence. This case is not the fruit of a legal dispute born from a testament, but a result of years of bad conflict management among family members. In his decision, the Honorable Judge quoted another court decision as follows:
“The goal of the law and its rules regarding an examining of the validity of a will is to determine whether, and to what extent, the will reflects the true wishes of the Testator in his commandments on the will and be sure that it was written with a clear mind and was not subjected to unfair influence”
The Honorable Judge quoted not only the law – different decisions from other cases in the Supreme Court – but also Jewish scholars and even the “Rambam” (Rabbi Moshe Ben Maimon) as well.
The Judge was perplexed as to the extent of the discrimination, but did not change his opinion that the Appellant hadn’t convinced the court that the will wasn’t “Kosher.” He wrote as follows in a final decision:
“I admit without shame that a will like this before me, so blatantly discriminatory between the two sons, without any previous disconnection between the testator (the mother) and her son the Appellant, raises clear questions. The power of these questions can cause the Court to examine whether this will reflects the desire of the mother, or if it was done by mistake, which could justify the requested amendment of the provisions on the will or even revoke it. However, since it was clearly proved in court that the editing and the signature of the will, are not controversial and there are even external circumstances reinforcing the contents of the will, the burden of the proof rests on the Appellant’s shoulders to show that a mistake was done and evidence must be presented.”
“Law and family are not considered closely to each other. The encounter between them occurs in times of crisis on the family, and not on moments of success” (“DANA 1892/11” 22.5.2011). Even in times of crisis, the power of the Court is limited. The Court is subject to the provisions of the law, and which, based on the facts established in this case, I think dictated the two previous court’s decision as well as the result of this decision. Inheritance law does not restrict the liberty of the Testator to discriminate between his children, and it is on the Appellant’s shoulders seeking to eliminate or invalidate such will based on provisions of the law. However, the Court cannot, and we do not, pretend to give a comprehensive response to questions that arise in difficult situations in the life of a family.”
This is a quintessential case whereby discrimination has not caused the deeper conflict, but it certainly could intensify it. It would be noble from the respondent to behave on the reservoir of the law (“Lifnim Meshurat Hadin”), and find a way to appease even slightly the opinion of the Applicant, his only brother.
The decision was to deny the request and leave the previous decisions unchanged – the will is “kosher.”
A word of wisdom:
Many times I have had clients come in to ask for legal help when, in fact, all they needed was a good mediator and/or a good psychologist. The lawyer is a professional dealing with the law, and as much as we try we are not in the “soul and emotional” business – we are in the law business.
When seeking legal advice or legal representation, please try to leave emotions behind and bring in as much logic and rationality as you can.
