Drafting a Mutual Will in Israel – Reciprocally Binding Testament
What is the purpose of a joint will?
A mutual will is a testament that was drafted in a reciprocal manner between two spouses. In a sense, such a will is a contract signed between the two and lasts until the death of one of the spouses, leaving the remaining spouse obligated to follow the provisions of the will. Should one of the testators change their testament so that it is not longer mutual, the other will is automatically rendered void. The law firm of Cohen, Decker, Pex, Brosh, specializes in inheritance law in Israel. In this article, attorney Michael Decker will explain the advantages and disadvantages of a mutual testament.
What is a mutual will?
According to the Inheritance Law (2005) mutual wills are drafted “jointly” – each testament relies on the existence of the other. In other words, the will of each spouse states explicitly that their will is fulfilled only provided the other spouse’s testament is still valid, binding, and mutual. This is despite the fact that Israeli inheritance law generally frowns upon attempts to limit what a person can or can not order from his estate. A joint testament is unique insofar as it is always mutually drafted between two spouses who agree to be mutually bound by their respective testaments.
The most popular form of a mutual will has both spouses leaving their share of the estate to other spouse, with the rest of the family receiving the inheritance after both spouses have passed on. However, there is nothing that prevents the making of a joint will that leaves the couple’s estate, jointly or severally, directly to a relative or other third party.
When is a mutual will canceled?
As long as both spouses are alive, one of them can notify the other that they wish to withdraw from the will, as they would from a mutual contract. If one will is cancelled or significantly altered, the other is automatically null and void. In this situation, the other spouse can make a new testament with no consideration of the cancelled mutual will. If either spouse pass away without making a new will, their share of the estate will be distributed as if they had died without leaving a testament. However, if the first spouse waited to “inform” the other of their intention to change the will until it was clear that the second spouse would be unable to draft a new will, because of health-related circumstances or lacking capacity, it would be reasonable to assert that such a withdrawal is invalid, and the mutual will is still binding.
After the death of one of the spouses, the other spouse may withdraw from the mutual will, provided that they renounce their share of the inheritance of the spouse’s property according to the will, or return their share of the estate if they already inherited it.
Is it better to write a joint will as one or two documents?
Legally, there is no difference. A mutual will can be drafted as two documents or as a single contract. However, it is possible that one spouse will want to change in the future small details about the inheritance which will not invalidate the will. For the sake of record keeping and practical convenience, we recommend that separate wills be prepared for each spouse.
Are there ways to ignore the provisions of a mutual will?
If the surviving spouse decides to sell, give away, or otherwise transfer their inheritance to a third party before voiding their obligations in the joint will, the direct heirs will have difficulty obtaining their inheritance without a legal struggle. If the couple wants to make sure that their heirs will receive their due even after the testator’s death, even should the surviving spouse decide to change their mind and use the inheritance in a manner not provided for in the will, it is recommended to consult an inheritance solicitor. In such cases, it is possible to restrict the surviving spouse’s use of the departed spouse’s assets.
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