Interpreting the intention of a will
Interpreting the intention of a will enables a judge to determine the testator’s intention in a case where it is subject to disagreement. An attorney specializing in writing wills will try to convey the testator’s intentions unequivocally in the will itself. But there is nothing to prevent an inheritor or other interested party from contesting the will in order to receive a larger portion of the inheritance.
The question is – how does one interpret the testator’s intentions? The person is no longer alive, so there is no way to ask him what he meant, beyond the words remaining on the page. What happens when the language of the will is insufficient to clearly answer the question “What did the poet mean?” How closely must a court stick to the language of the will in order to understand this intention? These questions will be addressed by attorney Michael Decker, who will explain how the judges in a court interpret the intentions of a will in Israeli inheritance law.
Where does the term “Interpreting the intention of a will” come from?
In this article, the term mainly relates to the opinion of the Chief Justice of the Supreme Court of his time, Aharon Barak, in response to Civil Appeal 1900/96 Telmachio v. the Public Trustee. In his rejection of the appeal, Judge Barak went into detail, describing two approaches to interpretation of a will – interpretation in a restricted sense vs. interpretation in a broader sense. Both forms of interpretation seek the best way to implement the testator’s wishes in case of a disagreement.
The restricted form of interpretation is based on Section 54 of the Inheritance Law, and anchors the understanding of the will primarily in the will’s language. When interpreting a will in the restricted sense, external circumstances proving the deceased’s wishes are required only in very exceptional cases. This interpretation is also known as a two-stage interpretation. The first stage is interpretation of the language of the will. In almost all cases, one should settle for this stage and not move on to external circumstances or the deceased’s intentions beyond the language of the will.
On the other hand, a broader interpretation enables situations in which, according to Chief Justice Barak’s method, the judge can deviate from the language of the will in order to fulfill the testator’s wishes. Such hypothetical situations include, among others: correcting errors, filling a lacuna, approximate implementation, and implementation by substitute.
The broad interpretation, which prefers the “spirit” of the testator’s wishes over the “body” of the language of the will, is known in legal circles as “interpreting the intention of a will”. This form of interpretation is also known as “one-stage interpretation”. According to this approach, taking into account external circumstances or understanding the writer’s intentions from any reliable source beyond the language of the will is not a separate stage to be performed only under exceptional circumstances.
First of all – what were the circumstances in the Telmachio ruling?
In the case under discussion, the deceased wanted to use her will to establish a public endowment, scholarships for IDF orphans. She stated that the money in an account in Bank Leumi, Arlozoroff Branch, Tel Aviv (corner of Dizengoff), would be used for this purpose. The remaining money in the estate was intended for the heirs.
Before her death, the testator transferred the money to a different branch of Bank Leumi, without changing the instructions in the will. In a literal reading of the will, one could understand (as did Isabel Telmachio, the appellant) that this money was no longer intended to establish the endowment.
How did the Telmachio appeal reach the Supreme Court?
The regional court rejected the appellant’s claim on the basis of Section 54 of the Inheritance Law. The law states: “A will is interpreted according to an estimation of the testator’s opinion as it is understood from within the will, and if it cannot be understood from within the will – as it is understood from the circumstances.” In this case, from the language of the will it is understood that the testator’s desire was to use the money to establish scholarships.
On the one hand, one can understand that the specific language of the will, indicating the money in a specific bank account, was intended to provide precision and make it easy to figure out which money was being referred to. The intention was not to create a restriction making it impossible to use the money once it was transferred to a different account. In addition, it is obvious that if the deceased had changed her mind regarding establishing the scholarships, she would have altered her will. Transferring the money to a different account was not a way to change the will’s instructions, neither by the law nor by common sense.
However, the appellant did not accept this judgement, and went on to appeal to the Supreme Court.
Justice Aharon Barak presents his method – interpreting the intention of the will beyond the will’s written language
As noted above, the Supreme Court rejected the appeal. Chief Justice Aharon Barak went into great detail in his reasoning and described several situations in which the interpreter of the will has the authority to deviate from the restrictions of the will’s language in order to fulfill his understanding of the testator’s wishes. Barak’s reasoning in this case has been widely cited and became a precedent for decades of interpreting the intention of wills in Israel.
However, it should be noted that Supreme Court Justice Yoram Danziger, for example, has expressed doubts about this approach. According to his method, interpretation must be mostly restricted by the language of the will. This legal discussion has yet to be settled, and we are presenting one position in this article. It is a highly influential position, but not the only one.
Examples of interpreting the intention of a will:
The theoretical examples presented by Aharon Barak (emphasizing his belief that they did not represent an exhaustive list) have been endlessly cited and reworded in discussions on the issue of interpreting wills. One must remember that the important part, according to Barak’s method, is the “soul” of fulfilling the testator’s wishes, and not the “body” of the will’s language.
First of all, he emphasized that the will and its instructions should be interpreted out of an understanding of the testator’s wording or lexicon. If a man calls his wife “Mother” (commonly seen in conservative circles in the United States, for example), the interpreter must be open to the possibility that a given item is willed to the deceased’s wife, and not to his mother. Thus also if the deceased calls his apartment in a residential building “the house” or even “the castle”, or the wine cellar “the library”, this should not cause confusion, as long as the interpreter possesses a reliable source for the terms that the deceased used in his daily life.
Specific instances in which an interpretation of the intention of a will deviates from the wording:
1. Correcting the language of the will due to an error that occurred;
2. Filling a lacuna in the will;
3. Fulfilling the testator’s wishes “approximately”;
4. Fulfilling the testator’s wishes via a “substitute”.
What do each of these mean?
- An error in a will means “a gap between objective reality and the testator’s subjective understanding”. “A” is written in the will even though the testator meant “B” and the interpreter absolutely knows this to be true. In this case, the will can be interpreted as though “B” were written in it. If it is impossible to determine what the testator would have intended without the error, the will is nullified.
- Filling a lacuna is done in a case of a “gap between the testator’s subjective reality and its expression in the will.” As stated in Section 32 of the Inheritance Law: “If a typographical error occurred in a will, or an error in a description of a person or property, in a date, in a number, in a calculation, etc., and it is possible to clearly determine the testator’s true intention, the error shall be corrected by the Inheritance Affairs Registrar, or the court if the matter is brought to it under Section 67A”. If “the testator’s true intention is appropriately clear to the judge”, he can ascribe a meaning to the will that is not supported by its language, but fulfills the wishes of the deceased.
- Fulfilling the testator’s wishes “approximately” occurs when the testator expressed his wishes correctly and clearly, but circumstances do not allow these wishes to be fulfilled. It could be that the inheritor died without leaving his own inheritors, or the charity that was supposed to receive a donation from the estate has closed down. In the latter case, it is possible (for example) to donate an equivalent donation to an existing charity which works towards the same goals as the charity that was supposed to receive the original donation.
- Fulfilling the testator’s wishes via a substitute is similar to fulfilling it approximately. In this case it is a specific substitute, on the basis of an ownership transfer which can be clearly tracked. “The testator instructed that her son would receive an apartment located on a specific street. After writing the will – and without her wishes undergoing any change – the testator sold the apartment and used the proceeds to purchase an apartment on a different street. It was ruled that her son would inherit the apartment on the second street.”
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