‘Chatima tova?’ To be inscribed in the Book of Life is insufficient

As we enter into the High Holy Days, we are made more aware than ever of the legal significance of being entered into the Book of Life. But we all know that this is not sufficient. A divine signature – a chatima tova – is a prerequisite for the entry in the Book to become effective. So, also, down here in the earthly prosaicness of the legal world, a signature on a document can determine its validity and effectiveness. Or does it? This is indeed obvious most of the time, but the story told below has a certain twist and gloss on that understanding. As we are all aware, every generation develops new modes of thinking and technologies – and the law, in the old rabbinic phrase, always “follows the generations.” By definition, legislators, when faced with new realities, have to study and think carefully how to change the law to meet these exigencies without upsetting the norms of society and customary human interchange. So you can imagine the surprise of Jacob who, the day after attending the burial of his uncle, Gershon, found a voicemail that was left on his phone by the deceased only hours before he had passed on to a better world. Jacob found it surreal to hear the clear voice of Gershon telling him: “My dear nephew Jacob, I have always known that you wanted to inherit my beachfront property in Herzliya Pituah. Please take a look at my wall on my Facebook, and I'm sure that you will have a pleasant surprise.” Famous last words indeed. For far from being a pleasant surprise and simply inheriting a piece of valuable land, the voicemail was an opening to an intense legal battle. Jacob rushed to his computer and indeed found on his deceased uncle's Facebook wall a last will and testament in which his beloved uncle left him the valuable beachfront property. But other members of the family – who weren't mentioned on the Facebook wall – didn't quite share Jacob's joy nor his sense of gratitude for the departed uncle. When Jacob brought a photograph of the Facebook wall to the Succession Cases Registrar, he was certain that he was on to what the Americans call a “slam dunk” situation – despite the carping of his siblings and Gershon's children, who were outraged to be disinherited. A certainty. No one, after all, disputed that this was Gershon's express wish, and surely – to paraphrase the words of the Supreme Court – following the wishes of the deceased is part of our culture and part of the norms of Israeli society. However, the members of the family brought in their own lawyers and claimed that the will had no validity whatsoever. For a start, it had no witnesses. And it lacked a signature. Jacob's lawyer argued that there is a method of executing a will that did not require witnesses. This was if the testator had drawn up the document with his own hand and dated it. There was no question – and even the contesting members of the family didn't claim otherwise – that the will was drawn up solely by Gershon and placed on the Facebook Wall by him in person. The Succession Cases Registrar was also quite clear when he stated that he had no doubt that Gershon's posting on the Facebook wall really did reflect his last wishes. But still, there was no signature. The question was: did this inscription on the Facebook wall bind the courts? JACOB'S LAWYERS argued that the development of technology meant that the method of “writing” had moved over the millennia, from chiseling words on a stone tablet, to a pencil, then to a pen and over 200 years ago to a typewriter. Such writing is a signature in the modern form. “The mode of writing has now morphed into people tapping on keyboards and putting documentation on the Internet,” argued Jacob's lawyers. “This document was written personally and posted, i.e. signed virtually, by the deceased. It should be construed as a handwritten will accompanied by a modern-day signature and, as such, completely valid.” The case was transferred to the Family Law Court, and the judge had to wrestle with the problem. He pointed out that the Inheritance Law was, in technological terms, truly ancient. It was enacted in 1965, when no one had heard or could have heard of SMS, Facebook or even the Internet. “Surely it's time to move with the times,” he mused in his decision. But, the judge asked, was this a handwritten will? And was this a signature? Jacob's lawyers pointed out that, in accordance with the Interpretation of the Law Act 1981, the term “writing” was defined as “any form or display of letters and/or numbers or signs that are able to be interpreted visually.” Thus, the Facebook will surely qualified. But the judge decided otherwise. He pointed out that when the law was enacted in 1965, there was an intense debate whether to allow handwritten, unwitnessed wills at all. The only reason why they were finally allowed in the end was because a document in somebody's own writing with his signature was absolute proof of the validity of the document – something that is still lacking even on a Facebook wall to which only the deceased had sole access. The writers of this column are absolutely sure that the day will come when it will be possible to express their wishes on a Facebook wall where it will be completely valid. As members of the Israel Bar Association Inheritance Committee, we and others are involved in looking for ways of achieving this. However, until such time, inscription – whether in the Book of Life or on a Facebook wall – is simply not sufficient. A real signature is a pre-condition. Dr. Haim Katz and Adv. Sam Katz are senior partners in a law firm based in Tel Aviv and Jerusalem. Their new book in English, The Complete Guide to Wills and Inheritance in Israel, is published by Israel Legal Publications and is coming out in September. They can be reached at office@drkatzlaw.com.

‘Chatima tova?’ To be inscribed in the Book of Life is insufficient

The writers of this column are absolutely sure that the day will come when it will be possible to express their wishes on a Facebook wall where it will be completely valid.

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