Revocation of a Will
A will is a document in which a person (hereinafter: “the testator”) determines what will be done with their property (hereinafter: “the estate”) after their death. But will this last testament be upheld as is, without any changes?
The Succession Law, enacted in 1965 (hereinafter: “the Law”), provides both the testator and the beneficiaries of the will (hereinafter: “the beneficiaries”) or those who were excluded from it, with various options to file an objection that will lead to the revocation of provisions in the will. The Law also determines when the involvement of beneficiaries in the drafting of the will will result in its revocation.
In this article, we will explain how those affected by the will can bring about its revocation.
In case where there is no valid will, the estate will be divided according to the rules determined by the Law.
Revocation or Amendment of a Will by the Testator
As long as he is alive, the testator can amend or revoke the will at any time he desires, in accordance with the “freedom of the will” that the legislation grants him. The various ways are detailed below:
Drafting a new will
The testator can draft a new will. If there are provisions that contradict the old will, they nullify it (even if the new will doesn’t explicitly state so). If the provisions in the new will only add to the old will, the provisions in the old are still valid, in addition to the ones listed in the new will.
Destruction of a will
When the testator destroys his will, the implication is that he wishes to nullify it.
Revocation through one of the ways a will is drafted
The testator can object and revoke his will through by same means by which it can be drafted; handwritten, before witnesses, before an authority, orally. However, the revocation does not have to be done in the same way in which it was prepared (by the testator).
For example, if the testator has drafted a handwritten will, he can orally declare that he is nullifying it before two witnesses when he is about to die (oral will).
The court can authorise the drafting of a will that has a defect.
Even when a particular defect has occurred during the revocation of the will, the court can justify the revocation. The court will cooperate with the testator to revoke the will if convinced that the testator intended to revoke it (Aharon v. Aharoni).
Improper involvement in the Provision of a Will that Results in its Revocation
Since the freedom of the will is a supreme value, we do not want any beneficiaries to be overly involved in editing the will. Improper involvement of a beneficiary in drafting a will will result in the revocation of the same provisions that entitle him or his spouse to inheritance. Section 35 of the Law specifies what improper involvement is:
The beneficiary is the editor/creator of the will
When the beneficiary is the one who wrote, formulated or edited the same provision that entitles him or his spouse to an inheritance, the provision is void.
The beneficiary served as a witness in a “will before witnesses”
“A will before witnesses” is when the testator declares in a written document that it is his will and the statement is made before two witnesses. Provisions in the will entitling the witness or his spouse are to be void.
A beneficiary who took part in drafting the will
A beneficiary who is significantly involved in drafting the provisions of a will that entitle him and his spouse, will be void. What does significant involvement consist of? The judgment in Chermon v. Golov states:
“An examination of the significance of a beneficiary’s share in the drafting of the will should be made for each case, dependent on the circumstances as well as the intensity and severity of the beneficiary’s involvement in drafting the will. Common sense also teaches us that the accumulation of events and affiliations, though not each of them by itself may be considered as taking part in drafting the will, when grouping them together as “overview” over the whole, they are considered as participation in the editing of the will, and therefore is prohibited”.
Exception: for an oral will (the person is about to die), the above provisions do not apply.
It is important to note: the court has no discretion in improper involvement. If one of the conditions is met, the same provision will be null and void, without leaving the court the option to decide otherwise.
Provision of a will drafted using improper means
Section 30 (a) of the Law specifies a number of situations in which the provision of a will is nullified, when an improper means has been used for the purpose of drafting that provision. An improper measure is one of the following:
- Unfair influence
We will discuss the last measure, “unfair influence”, as it is a vague measure that requires explanation. There is an influence that is permissible, and there is an influence that is unfair and forbidden. The ruling gives four tests that will help us understand when an influence becomes unfair:
- Independence test: Was the testator mentally or physically dependent on another person at the time the will was made? Or was he independent and capable of acting on his own?
- Assistance test: If the testator did depend on another person, to what extent did that person help the testator? Were there other people who assisted the testator?
- Relationship with others test: Was the testator in contact with other people at the time the will was made? Or was he isolated from society?
- Circumstances when drafting the will test: Was the person that the testator was assisted by and dependent on involved in the making of the will? If so, what was the extent of the involvement?
Section 31 of the Law stipulates that if all the following conditions are met, the invalid measures listed above will not lead to the revocation of a will made under the same measures:
- The wrong means has passed
- A year has passed since the invalid means ceased to operate on the testator
- During that year, the testator had the option to revoke the will
- The testator did not revoke the will
Revocation of a will provision and related provisions
When we discuss the revocation of a will provision, which stems from one of the grounds we have detailed in this article, it is important to note that this is a revocation of a specific provision in which a grounds for revocation exists. It is not a revocation of other provisions in a will where there is no grounds for revocation.
However, there may be situations in which other provisions in the will are revoked due to a grounds for revocation that exists only in a specific provision. These situations are as follows:
- The provision is inextricably linked to the revoked provision
- The testator would not want the provision to take place without fulfilling the revoked provision
Interested in drafting a will? In issuing an application for an inheritance order or a will execution order? The Cohen Decker Pex Brosh Law Office is at your service
At the Cohen Decker Pex Brosh Law Office, you will meet lawyers who specialize in family law who are also qualified as mediators. Our lawyers will help you draft a will that fully reflects your wishes and will accompany you through the various proceedings until it is submitted. In addition, our attorneys will assist you with applications for an inheritance order or a will execution order.