Shekel money bills.
(photo credit: REUTERS)
Last week, we related how Moses, before he died, made a will that gave half his worldly assets to Rivka his next door neighbor, who had with her family helped the old man with generosity and kindness in the last years of his life. The other half went to his two sons in equal shares.
And Moses added a no-contest clause disinheriting any potential heir if that heir attacked the will in any way.
The two boys challenged the will, claiming that Moses was senile and sick at the time of making the will and thus had no real idea of the implications of his actions. Furthermore, they viciously attacked the neighbor with epithets and innuendos, calling her “predatory” and a “gold digger.”
Upon hearing the evidence, the court came to the conclusion the Rivka had behaved impeccably without any ulterior motive. The court determined further that Moses was in full possession of his faculties and knew exactly what he was doing when he wrote the will.
The attack on the validity of the will was based on the evidence of the two sons and their team of experts. It was clear that the evidence was presented in a partisan way, and that the facts, as the judge pointed out, were twisted and fashioned in a way that would serve the two boys and did “not serve the truth.” The sons of the deceased, wrote the judge grimly, were not to be believed and had in fact lied outright to the court.
“And what I particularly find unacceptable,” wrote the judge, “was the way the two sons have attempted to besmirch Rivka, who had given succor to their father where they themselves had failed so badly.”
But so what?
Under the law, even though the sons were not nice people does not necessarily make them lose their inheritance. There are many precedents where people have, for example, inherited their spouses even though they were abusive, even violent, husbands or wives.
The law does not necessarily stand in moral judgment. Its job is often technical and legalistic. Does it serve the public good if the courts upheld provisions purporting to penalize a person for contesting a will? What if you truly believe your aged grandfather had been influenced unfairly by his carer to disinherit his family and leave everything to the carer? (As Israel’s population ages, this is increasingly being tested in the courts). What if you really believe that a deceased had no faculty of judgment and would change a will at anyone’s behest?
In other countries, no-contest clauses are outright disallowed. For example, in Florida, no-contest clauses in wills are specifically unenforceable and do not disinherit the challengers of such documents.
Judge Naftali Shilo, formerly the head of the Tel Aviv Family Law Court and now on the Tel Aviv District Court, summed up in a recent case the legal situation in Israel with regard to no-contest clauses.
Where legal action challenging the validity of the document is instituted in good faith and based on probable cause in true belief that in all likelihood that will was invalid, then that would not cause the no-contest clause to kick in, he said.
But if the challengers of a will did so in bad faith, that was something else altogether and would bring about the disinheritance of the challengers, Shilo said.
Similarly, in other countries where no-contest clauses are allowed and challengers are at risk of being disinherited, there is often an exception where legal action challenging the validity of the document is instituted in good faith. So where a challenge is based on honest belief, and where a reasonable person would conclude that there was a real possibility that the will was invalid, then such a challenge would not activate the toxic no-contest clause.
Referring to Shilo’s judgment, the court in Moses’s case decided that the sons’ challenge was not in good faith and was a brazen attempt to frustrate the intentions of the deceased. No holds were barred, the judge said, and the sons had used lies, outright deception and had perjured themselves in pursuit of their goal.
The court decided that the no-contest clause in this case was valid.
The challengers were excluded from inheriting anything under the will and got nothing.
Lesson to be learned: If you feel some of your heirs will attempt to frustrate your express wishes in your will, insert a no-contest clause.
Dr. Haim Katz is senior partner in a law firm based in Tel Aviv and Jerusalem. Sam Katz is a partner in the same firm. Both have written books on inheritance law, family law and real estate and are active in general civil litigation.