How to make a valid will without witnesses and without leaving your home

Planning in uncertain times

By HAIM KATZ, SAM KATZ
A REPLICA of Marco Polo’s 700-year-old last will and testament. (photo credit: REUTERS)
A REPLICA of Marco Polo’s 700-year-old last will and testament.
(photo credit: REUTERS)
An elderly friend who lives in a Jerusalem old-age home called me in a panic just before Passover. He had intended for quite a while to draw up a will naming his wife as the sole beneficiary of his estate but never got around to it.
"I am nervous that if I die intestate [without a will] then half the assets will go not only to my wife but also to my children,” he told me. “I don’t want her to find that the house we have built now belongs partly to someone else, even though they may be our children. I know that we need a lawyer and two witnesses," he added, worried that he might not be able to find the needed people during the COVID-19 pandemic.
Indeed, one of the most important points in any will is the identification of the person making the will. There must be absolutely no doubt that the person signing the document is who he says he is and thus able to dispose of the assets outlined in the will.
Usually this is not a problem because most methods of making a will under Israeli law demand two witnesses. These witnesses have to be over the age of 18, and testify that the person before them is of sound mind, and that he signed the document after he had declared before them that this was his will.
In order to create a valid will, the witnesses also have to sign on the will itself, attesting that the maker of will made a declaration and signed before them.
In these days of self-isolation, how can older people, or even young ones for that matter, make a will that will reflect their wishes for the future?  According to the regulations, there is no way of admitting strangers to serve as witnesses in nursing homes, and people in self-isolation are not supposed to meet outsiders at all.
You may think that someone self-isolated with their family could utilize them as witnesses but any provision that leaves any assets to someone who served as a witness is void.
So, how can you make a will with witnesses where nobody can see you physically? The Israel Bar Association Inheritance Committee, of which the writers are members, is busy trying to substitute physical communication with visual communication such as Zoom, Skype, etc. as proof of the validity of the will and of the identity of the testator. 
These emergency regulations are taking longer to enact than expected because of the gravity of a will, the document by which people dispose of their assets after their death. However, because of the urgency of the situation in which millions of people are unable to make a will, developments in this area are happening daily.
Anyone wanting more information and updates can contact us by email at office@drkatzlaw.com, and we will attempt to respond in a timely fashion and bring you up to date.
IN THE INTERIM, here is an immediate way where you can write a valid will without witnesses.
The will must be written by yourself by your own hand from beginning to end. The entire document must be handwritten by the testator and no one else. It cannot be partially typed. It is also important to remember to date the document.
These are called holographic wills and are recognized by Section 19 of the Inheritance Law. They are the only kind of will that does not need witnessing.
If a person follows the rules and regulations contained in the Inheritance Law, then such a will could be effective even without witnesses.
"Is this the best way to make a will?" my friend asked me. 
The answer is no.
In normal times, I would suggest that he have a will drawn up for him which is signed in front of two witnesses who attest to the fact that he was of sound mind and willingly signed the document.
However, these are difficult days. My friend was sequestered and unable to leave the old-age home under any circumstances, and it was impossible to send the required witnesses to him. So the default was a holographic will.
There are difficulties with such an option. Because of the lack of witnesses, and also because people generally often write their own wills without legal advice, these kinds of wills are more contested than others. The requirements are lax, and this can create ambivalence and uncertainty.
For example, is it necessary to head the document with "Last Will and Testament?"  Strictly speaking, this is not required by law but the lack of title can create questions.
People have written holographic wills on the back of envelopes, which can cause the court to ask, "Is this a will or is it just a list of thoughts and internal deliberations?"   
Our advice is to ensure that the document is properly headed, clearly denoting that it is a will. Inasmuch as the court demands an original will when probating, it is wise to use blue ink so that the document does not appear to be a photocopy.
Once the document has been written and signed it would also be wise to send it to your attorneys with an explanatory letter. In turn, the lawyers should inform the maker of the will where the document is being kept. 
Because of the lack of formality surrounding them, holographic wills are often thoughtlessly put in places where it is difficult to find them; in drawers, in piles of papers and sometimes even inside of books.
In one case, an elderly man during his lifetime consistently promised his favorite nephew that his property in Herzliya Pituach was going to be left to him. 
However, after the uncle died, only one will was found. That will was a decade old and properly witnessed and attested to, however, there was no mention of his leaving his property to the nephew. The disappointed nephew was left in charge of disposing of the uncle's assets. It was only about a year later that the nephew disposed of the many volumes of books from his uncle's library. 
Imagine his surprise when the second-hand bookseller called him and told him that while handling the books, a one-page document fell out which seemed like a will. The nephew rushed over and indeed found that this was a later will written completely in the uncle's ow hand, signed and dated. 
This is not the place to go into the legal troubles that the second will caused and why it was contested vigorously by the other nephews who felt that this did not reflect the testator's real will.  But in the end, it was upheld and the nephew inherited the property. 
So, while they are not the first choice, handwritten wills executed in the way described here are effective.
The writers are senior partners in a law firm based in Tel Aviv and Jerusalem. Their new book, The Complete Guide to Wills and Inheritance in Israel (Israel Legal Publications), is sold on Amazon, however, the full e-book is free for readers of The Jerusalem Post. Office@drkatzlaw.com.