Is a duck always a duck? In the legal system, not always

There is always the possibility that something that looks and quacks like a duck is not a duck at all.

 A mallard, both looking like a duck and swimming like a duck. (photo credit: WIKIPEDIA)
A mallard, both looking like a duck and swimming like a duck.
(photo credit: WIKIPEDIA)
Jerusalem Report logo small (credit: JPOST STAFF)Jerusalem Report logo small (credit: JPOST STAFF)

The legal system has many presumptions that allow a court to assume a presented fact is really true. As we all know, every statement made before a court has to be proven so that the judge is satisfied that it is correct. But this is not so in the case of a legal presumption.

For example, a child of a husband and wife living together is presumed to be the husband’s child. Another legal presumption is that a person who has disappeared and has not been heard of for seven years is dead. The most famous presumption of all is that an accused person is innocent until proven guilty.

As a judge once said of presumptions, echoing the so-called duck test: “If it looks like a duck, quacks like a duck and walks like a duck, we are going to presume that it is a duck.” But there is always the possibility that something that looks and quacks like a duck is not a duck at all. There are well-designed duck decoys used for hunting that do the above but are not real ducks.

All the above-mentioned presumptions can be rebutted or disproved. A DNA test can conclusively prove that the husband is not the father. When a person who has been missing for seven years or more is found alive, the presumption that he or she is dead falls away. Evidence at a trial can convict an accused person, who up to that point is presumed to be innocent.

When it comes to wills, there are important legal presumptions. One of these is that a document that looks like a will, has witnesses, a date, and has signatures, is assumed to be a will. However, despite this presumption, a will – being a document of often huge import – is not considered to be effective until it has been probated (from the Latin probare – to prove) by a competent judicial forum, mostly courts and registrars.

THESE DUCKS wake up at the quack of dawn to enjoy the quiet early morning hours in Tel Aviv’s Park Hayarkon. (Deborah Strauss) (credit: Courtesy)THESE DUCKS wake up at the quack of dawn to enjoy the quiet early morning hours in Tel Aviv’s Park Hayarkon. (Deborah Strauss) (credit: Courtesy)

All wills are presumed valid, but that does not make them effective in real life. You might have a perfectly good will, seemingly signed by your uncle, leaving you his villa in Herzliya Pituah, but when you come to the Land Registry to change the ownership to yourself as heir, you will be sent packing as the will has not been probated.

So it is in the process of probating a will that a person is given the opportunity of rebutting the presumption that a will is valid. To challenge a will in Israel, you have to lodge a formal objection to the probate of the document. This is done initially before the Registrar of Wills and later before the competent court.

If you feel hard done by if you have been excluded in a will, or if you feel that a will was obtained under undue influence or outright force, or you question the mental incompetence of the person who has signed the document, you can object and make a cogent case persuading the judge that the will is not valid.

The burden of proof is on you as the person objecting to the will, and it is a heavy burden of proof. In this short article, we cannot touch upon the many grounds upon which a successful objection to a will may be lodged before the courts. On this occasion, we will point out one of the most extreme grounds for voiding a will. One such case was when a young woman, holding a knife to her uncle’s throat, “persuaded” him to write a will leaving his entire fortune to her. The will was handwritten by the uncle in his house, sitting in his study under the niece’s dictation, and then signed and dated by him.

Under Israeli law, and in many other jurisdictions worldwide, handwritten wills (in legal parlance, holographic wills) are valid even though there are no witnesses.

In our case, the girl then snatched the will and rushed out of the house. In the morning the uncle rang up his lawyer and told him the shocking events of the previous night. The lawyer then told him that he must immediately write another will or revoke the will he had just signed. The uncle, astonishingly, told the lawyer that he had no intention of revoking this will.

“I have no children and she is my only family,” he told the lawyer, “and I was going to leave everything to her anyhow.” He explained that she had gotten into bad company and was taking drugs, triggering the bewildering events of the night before. And he indeed never revoked the will.

The niece did recover, went into rehab, became a normative citizen, and resumed her close relationship with her uncle. When the uncle died, the niece put in the handwritten will for probate as the sole heir. But the deceased’s lawyer, recalling the conversation between himself and the testator many years back, took it upon himself to object to the will, stating that it was obtained under duress.

In court, under affirmation equivalent to oath, the niece did not deny the events of that night and the threats she had made to her uncle. “I was beside myself and behaved madly,“ she shamefacedly admitted.

According to Israeli law, a will obtained under threat is presumed to be void. But here again, there was a double presumption: the first was that this handwritten will was valid. That presumption was rebutted by the lawyer testifying about the threats made that night. This, on the face of it, was a decisive rebuttal of the presumption that the will was valid.

However, another legal presumption then came into play, which changed the entire outcome of the hearing. The fact was, that the uncle had had ample opportunity throughout the years to revoke or rewrite his will but he did not do so. The presumption was that as he did not do so, he knowingly showed his true intention – that he wanted the will he had written that night to be upheld. Presumptions can negate other presumptions. The court decided that the will was valid and the niece inherited. ■

Dr. Haim Katz and Sam Katz Adv. are senior partners in a law firm based in Tel Aviv and Jerusalem, specializing in inheritance disputes.