What Will and What Will Not Constitute “Ha-ra’at Te’naim”?הרעת תנאים

Depreciation of Terms and Conditions of Employment (Ha-ra’at Te’naim)

“A person who has been employed continuously for one year… by the same employer or at the same place of employment and has been dismissed is entitled to receive severance pay (pitzuyei piturin) from the employer who has dismissed him.”
Section 1(a), Israeli Severance Pay Law, 5723-1963

“Where an employee resigns by reason of an appreciable deterioration of his conditions of employment (ha-ra’at te’naim) … the resignation shall, for the purposes of this law, be deemed to be dismissal”
Section 11(a), Israeli Severance Pay Law, 5723-1963

Generally speaking, the Israeli Labor Courts are sympathetic to claims for severance pay on the grounds of ha-ra’at te’naim. However, the following points should be noted:

1) The law speaks about an “appreciable worsening” of terms and conditions of one’s employment, which are introduced unilaterally and without the employee’s consent, such that the employee cannot be expected to continue in his work.

2) Certain conditions must be satisfied in order to be entitled to receive full severance pay. These include giving the employer an opportunity (via notice in writing which explicitly identifies the ha-ra’at te’naim in question), to rectify the ha-ra’at te’naim and stating that if the depreciation is not rectified, the employer should regard this notice as a letter terminating the employee’s work, which will enter into force within a given period of time (e.g. 14 days).

3) Timing is also important - the employee must convey his objection to the ha-ra’at te’naim, immediately upon or proximate to their occurrence, as failing to do so, will deem the employee to have agreed to the new terms and conditions.

What will generally be regarded as ha-ra’at te’naim – and what will not?

The usual cases of ha-ra’at te’naim include lowering an employee’s work load or delaying paying his/her salary on a regular basis. The Labor Court has recognized that an employer’s injurious and denigrating attitude towards his employee can also constitute ha-ra’at te’naim. Worse conditions relative to those that appear in one’s employment contract will likewise be regarded as ha-ra’at te’naim.

A change in the employee’s hours of employment could well be regarded as ha-ra’at te’naim. Thus, for example, when the employer is aware that the number of hours of employment have been agreed in advance, such a change might well impede the employee’s ability to attain additional income or to fulfill other obligations.

Likewise, a material change in the scope of the employment which can be proven might constitute ha-ra’at te’naim.

Finally, where one’s professional status has been changed in an extreme and serious manner, without any connection to salary change, whether for better or for worse, this too will constitute ha-ra’at te’naim.

However, not every change will constitute ha-ra’at te’naim. As we have already noted, the change must be an appreciable change for the worse - not merely minor, which is not consistent with labor laws and/or with the employee’s work conditions in force until the change. The change must impact on the employee in an appreciable manner.

Thus, while negating an employee’s entitlement to his salary cannot be legally enforced, the courts have determined, however, that when there occurs a change of arrangements and procedures in one’s employment – where such change has not been implemented in order to adversely affect the employment terms and conditions or for invalid reasons – this will not be regarded as an appreciable worsening of the employee’s conditions of employment.

Moreover, severance pay is not granted automatically by the courts - in many cases, the courts have determined that at times the employee has been too quick to resign, solely in order to gain entitlement to severance pay. However, where the courts are convinced that the reason for resigning indeed emanated from ha-ra’at te’naim, and that a causal link exists between the terms of the employment and the resignation, the employee will be entitled to receive severance pay.

Because severance pay cannot be guaranteed in cases of resignation, an employee whose terms of employment have changed for any reason can notify the employer that there has been an appreciable depreciation in his conditions of employment according to the law, and request that the employer retract these. Alternatively, he could continue to work as usual and at the same time sue the employer in the Labor Court.

***

Simon M. Jackson is a practising attorney, notary and professional translator in Israel. His specialized areas of practice include contracts (including rental and employment agreements), real estate transactions, commercial law (companies, partnerships, amutot-NPOs), wills and successions, and professional translations (notarized translations a specialty). Simon writes an active blog about contemporary legal issues, Hebrew language gems and Torah insights. Simon can be contacted in any of the following ways:

Direct Dial: 0737-40-60-40
Cellular: 0545-742-374
Facsimile: 03-762-2823
Skype: simonjackson
E-mail: simon@jacksonadvocates.net
Web: https://www.jacksonadvocates.net
Facebook: http://www.facebook.com/israelnotary
Video: http://youtu.be/tzYASLIxXAc

 

Disclaimer: The content of this blog is for informational purposes only. It is not intended to be comprehensive, and nor does it constitute legal advice. We attempt to ensure that the content is current, but we do not guarantee its currency. You should seek legal or other professional advice with respect to any particular issue or problem.

Seller Beware! Remember - Even Negotiations Must be Conducted in Good Faith in Israel…מוכר היזהר! זכור - גם משא ומתן חייב להתנהל בתום לב בישראל

Recent Court Case –
The Importance of Good Faith Also During Contractual Negotiations

Under Israeli law, not only must “an obligation or a right arising out of a contract be fulfilled or exercised in customary manner and in good faith” (s. 39 of the Contracts (General Part) Law, 5733-1973), but even “in negotiating a contract,” the parties “must act in a customary manner and in good faith” (s. 12(a) ibid); and “a party who does not act in customary manner and in good faith shall be liable to pay compensation to the other party for the damage caused to him in consequence of the negotiations or of the conclusion of the contract (s. 12(b) ibid).

The requirement of good faith not only in fulfilling the contract, but even at the negotiating stage – regardless of whether the contract materializes at all – was the most far-reaching innovation of the Israeli Contracts (General Part) Law, 5733-1973.

This principle was graphically illustrated in an important recent court case (Haifa District Court, Civil Case 10103-11-13, Shani Oliel v. Talya Zahava Adler et al).

The plaintiff located an apartment, owned by the defendant, in the Bat Galim neighborhood of Haifa. After speedy negotiations, the purchase price agreed for the apartment was NIS 1.16 million. The plaintiff’s attorney wrote to the defendant’s attorney, requesting him to send a draft contract – which he did the same day. Several days later, it was agreed that the parties would meet to sign the contract. However, one week before the scheduled meeting, the defendant met with another couple, and signed an agreement to sell the apartment for NIS 1.3 million.

The plaintiff therefore petitioned the Court for an order to enforce the draft contract with her, or, in the alternative, to compensate her in the sum of NIS 140,000 – the profit that the defendant had made from selling the apartment to the other purchasers.

The judge who heard the case, Ron Sokol, focused on the issue of “good faith” on the part of the seller – who, at the last minute, changed her mind. He noted that Israeli law attributed legal significance not only to documents that were written and signed documents, but also to statements made between the parties. According to Judge Sokol, statements such as “the matter is closed,” “congratulations” (mabruk), “I promise” etc., articulated before withdrawing from the negotiations, would justify a finding that the withdrawal was not performed in good faith. The same would apply to ancillary documents signed by the parties’ attorneys which would enable the purchaser to obtaining funding, signing a power of attorney etc. – essentially, any document which could attest to the formation of the contract. Withdrawing from the contract at such a stage would thus be regarded as a lack of good faith on the part of the seller.

The judge determined that the seller and her attorney had represented to the buyer that all of the details had been agreed and that nothing remained for negotiation. Although a contract for the sale of the apartment had not yet been signed, a time for signing the contract had been set and it was anticipated that the parties would sign the documents and complete the transaction. Therefore, the judge ordered the defendant to pay NIS 70,000 to the plaintiff together with her attorney’s fees.

The judgment clarifies the limits of negotiations. Negotiating with a number of potential buyers in tandem is not off-limits, in and of itself. However, a seller who does this must alert all bidders to the fact that he is conducting parallel negotiations or at least that he is not obligated not to do so. Failure to act in this manner may result in a judicial finding that the seller has acted not in good faith and must therefore pay compensation, which could potentially amount to the difference between the price at which he agreed to sell the property to one bidder and the price for which the apartment was eventually sold to another purchaser.

 

What happens if I don’t make a Will?מה קורה אם אני לא עושה וויל?

Several people recently asked me: What happens if I don’t make a Will?

There are at least 5 worrying answers to this question:

Without a properly drawn up Will:

  • Your widow will receive only 50% of your assets – while the additional 50% will be distributed amongst your children (can you be sure 50% of your assets will cover all your widow’s needs?)
  • You will not be able to appoint guardians to take care of your children, should you and your spouse die when your children are still young.
  • Your heirs will need to file an application for a succession order – a procedure which is complicated and lengthy as compared to the much simpler procedure of applying for an order to probate a Will.
  • You won’t be able to make bequests of specific items of monetary or sentimental value to your children or grandchildren (jewelry, books, various collections etc.)
  • You won’t be able to enjoy the peace of mind of knowing that you’ve done everything possible to prevent arguments and rivalry amongst your children regarding your assets after you die.

 

For further advice and assistance in making an Israeli or UK Will, feel free to contact Simon: 0737-40-60-40 / 0545-742-374 / simon@jacksonadvocates.net

Several people recently asked me: What happens if I don’t make a Will?

There are at least 5 worrying answers to this question:

Without a properly drawn up Will:

  • Your widow will receive only 50% of your assets – while the additional 50% will be distributed amongst your children (can you be sure 50% of your assets will cover all your widow’s needs?)
  • You will not be able to appoint guardians to take care of your children, should you and your spouse die when your children are still young.
  • Your heirs will need to file an application for a succession order – a procedure which is complicated and lengthy as compared to the much simpler procedure of applying for an order to probate a Will.
  • You won’t be able to make bequests of specific items of monetary or sentimental value to your children or grandchildren (jewelry, books, various collections etc.)
  • You won’t be able to enjoy the peace of mind of knowing that you’ve done everything possible to prevent arguments and rivalry amongst your children regarding your assets after you die.

G’mar chatima tova,
- Simon

For further advice and assistance in making an Israeli or UK Will, feel free to contact Simon: 0737-40-60-40 / 0545-742-374 / simon@jacksonadvocates.net

12 Practical Tips and Tricks for Rental Contract Negotiations in Israel (Part II)חלק ב’: טיפים למו”מ לקראת חתימה על חוזה שכירות

You are about to rent an apartment. A person purporting to represent the landlord presents you with a single sheet of paper and shows you where to sign on the dotted line (“it’s just standard wording,” he assures you). What should you look out for to protect your interests?

In Part I of this article, we discussed the issues of obtaining a valid power of attorney in the case of an absentee landlord; the importance of making an inspection of the property before signing the lease; adding e-mail as a valid form of communication between the parties;
what to do when the landlord requests rent in advance; the advantages of an option-to-renew; and premature termination of the lease.
We conclude this article, with a series of further practical issues to consider before signing the lease.

Payment of expenses (Arnonah, water, Va’ad Bayit)

In terms of paying expenses – the tenant should only be responsible for usual expenses and regular Va’ad Bayit (Building Maintenance Committee) costs, not for building repairs or improvements/renovations (installing an Intercom system or fixing a lift in the building, replacing a solar heater on the roof, etc). Arnonah, the municipal tax on the apartment, can be high (it includes the water bill), so be careful to ask how much you will have to pay in advance (although as an Oleh Chadash you are entitled to a discount of up to 90% on the bill for the first year, on presentation of your lease to the Iriyah-Municipality). Arnonah is payable according to the number of rooms and amount of space in the apartment – hence it is important for the contract to make clear if one room is closed to you by the landlord.
You should also inquire in advance as to how much you will have to pay monthly to the Va’ad Bayit of the building (if there is no Va’ad Bayit, you will be responsible for performing your share of the upkeep of the common parts of the apartment building).

Repairs and Maintenance of property

You should likewise be responsible only for repairs caused by your use of the property – not for fair wear and tear. The contract should be formulated in such a way as to make it clear that the renter is responsible only for repairs above and beyond what is normal usage, and that the owner is responsible for all other repairs (such as structure, wiring/fuse box, and dampness/plumbing). In the case of an absentee landlord, check who will be your reference point if any repairs need to be effected during the term of your lease. Remember that you do not want to have to be dealing remotely, through an absentee landlord who may be 7-10 hours distance away from you, especially in the case where urgent repairs may be required.
A property manager or agent inIsraelis therefore highly recommended.

Insurance

You should insure your own belongings, while the landlord should insure property and contents belonging to him.

Security deposit

It is normal to be required to give some form of security deposit.
If a personal check is given, you should write on the check hamcha’at bitachon bilvad – lo sachir, clarifying that the check is for security deposit only and is not negotiable. An undated blank check might be asked for by the landlord, in which case the lease should state by whom the check will be held and clear terms as to the conditions under which the check should be cashed and when it will be returned to you. Whether or not you are required to provide a promissory note (shtar chov) and one or more guarantors (areivim) often depends on how good a negotiator you are! If a shtar chov has to be given, it should be limited in amount (at a level of no more than 3 months’ rent, especially when the rental term is not for many years and where the apartment and furnishings are not in mint condition). A demand to furnish a bank guarantee (areivut bankait) in particular should generally be resisted by the tenant, as it both costs money for its issue and locks up with the bank the amount on the guarantee; in addition, the landlord can cash it in without giving any notice to the tenant. Obviously, from a tenant’s point of view, the less security he needs to give the better and easier for him (especially as it may be near impossible for a new immigrant to provide a guarantor, let alone two).

Signing of contract

Finally, every hand-written change to the lease should be initialed by both parties. Likewise, the parties should initial at the bottom of every page of the contract, with their full signature on the signature page.

Concluding remark

In general, remember: standard rental contracts inIsraeltend to be very landlord-weighted (much as employment contracts tend to be weighted in favor of the employer), and you should not be afraid to negotiate the points therein! That said,
it goes without saying that even negotiations need to be undertaken in a fair and balanced manner (and in good faith) – otherwise, you run the risk that the landlord will not want to take you as his tenant
if he gets the impression that the entire tenancy will involved him in a negotiation match…

12 Practical Tips and Tricks for Rental Contract Negotiations in Israel (Part I) חלק א’: טיפים למו”מ לקראת חתימה על חוזה שכירות

http://img2.tapuz.co.il/forums/1_132291008.JPG

12 Practical Tips and Tricks for Rental Contract Negotiations in Israel (Part I)


You are about to rent an apartment. A person purporting to represent the landlord presents you with a single sheet of paper and shows you where to sign on the dotted line (“it’s just standard wording,” he assures you). What should you look out for to protect your interests?

Proper power of attorney and absentee landlord

First, insist on seeing an original Power of Attorney document, to verify that the agent has actual authority to sign a rental contract with you on behalf of the landlord. This should be notarized, and if obtained outside of Israel also apostilled.

Property inspection before signing lease

Prevention is better than cure: especially if the apartment is old (and in particular if you plan on living in it for more than a few months), consider undertaking a property inspection through a reputable engineer. Points to check include the presence or likely appearance of mold/dampness (retivut) on the walls, any leaky taps/toilets (you will be responsible for paying the water bills), whether the fuse box is capable of bearing all of your appliances, etc. It is recommended to list and even photograph the apartment and furnishings before entering into it (e.g. if a hinge on the door of a cabinet is not working), to avoid arguments (and attempts to forfeit your security check) at the end of the tenancy period, over whether you have restored the apartment and any furnishings in it to the state it was in at the time you moved in.

E-mail as valid form of communication

Especially in the case of an absentee landlord, make sure the contract includes a clause stating that e-mail is a valid means of communication between the parties, and specifying the parties’ e-mails for this purpose.

Rent in advance

Try to avoid paying more than 1 month’s rent in advance. Request a 7 day grace period which allows you to pay rent within 7 days of the contractual due date without breach of contract.

Option-to-renew

If you think you may be interested in continuing the tenancy for 1 further year (or longer), you should request that an option-to-renew clause be inserted in the agreement. This will enable you to continue to rent the apartment on the same terms – including at the same rental, or at a rent to be increased by ___% – provided you do not breach the terms of the rental agreement during the initial rental period. This arrangement will often be beneficial to the landlord too, because it saves him the heartache of having to find an alternative tenant, including, possibly, time during which the apartment may go unrented, and including the cost of advertising for a new tenant. In addition, if a mechanism for increasing the rent is already inserted into the original contract, the contract can be renewed automatically, without the need for further lawyer’s fees, etc.

Premature termination of lease

If the contract stipulates that the landlord has the right to give ___ days to terminate the lease prematurely, the tenant should insist on being given the same amount of time to break the lease should this prove necessary. If the lease is for a defined term (e.g. 1 year), try and get out of the need to find a suitable alternative tenant for the remainder of the term, in the event that the lease requires premature termination (e.g. after trying, unsuccessfully, for a maximum period of two months). If you are required to find a replacement tenant “suitable to the landlord,” be sure to qualify this with the words: “provided that the landlord shall not unreasonably refuse his consent to such alternative tenant.”

Part II to follow!

For further advice on rental contracts, feel free to contact Simon on 0737-40-60-40 / 0545-742-374 / simon@jacksonadvocates.net

Tefillin – A Sign and Reminder of Greater Things

Tefillin – A Sign and Reminder of Greater Things

וְהָיָה לְךָ לְאוֹת עַל-יָדְךָ, וּלְזִכָּרוֹן בֵּין עֵינֶיךָ, לְמַעַן תִּהְיֶה תּוֹרַת ה’, בְּפִיךָ: כִּי בְּיָד חֲזָקָה, הוֹצִאֲךָ ה’ מִמִּצְרָיִם (שמות יג,ט)

“And if shall be for you a sign on your hand and a reminder between your eyes – so that God’s Torah may be in your mouth…” (Shemot 13:9)

The classical interpretation of this verse (see Rashi and Ramban) is that the Torah is commanding us to place the Tefillin, containing the four sections from the Torah that speak about the Tefillin commandment, on our hand/arm and just before the hairline between our eyes.

In contrast, Rashbam (Rashi’s grandson) gives an allegorical interpretation to the verse in Shemot quoted above:

לאות על ידך” - לפי עומק פשוטו: יהיה לך לזכרון תמיד, כאלו כתוב על ידך. כעין, שימני כחותם על לבך.

בין עיניך” - כעין תכשיט ורביד זהב שרגילין ליתן על המצח לנוי.

For a sign upon your hand” – According to its plain meaning (omek peshuto): it shall be to you for a remembrance continually just as if it were inscribed upon your hand, similar to the verse “Set me as a seal upon your heart” (Shir HaShirim 8:6). “Between your eyes” – as an adornment and a golden tiara that is worn round the head as an adornment.

Rashbam interprets the “Tefillin passage” in our parsha as an allegory which demands that we remember the Torah always and treasure it like a piece of fine jewelry. The Torah should be like a fine bracelet or necklace which we wear proudly. In other words, the Torah is supposed to be precious to us and be remembered always.

This interpretation is borne out by the use of similar metaphors employed elsewhere in Tanach:

1) God’s Torah and His commandments are “a beautiful wreath to your head and a chain/necklace about your neck…” (Mishlei 1:8-9)

א,ח שְׁמַע בְּנִי, מוּסַר אָבִיךָ; וְאַל-תִּטֹּשׁ, תּוֹרַת אִמֶּךָ.
א,ט כִּי, לִוְיַת חֵן הֵם לְרֹאשֶׁךָ; וַעֲנָקִים, לְגַרְגְּרֹתֶךָ.

2) “Bind them [kindness and truth] about your neck, inscribe them upon the tablet of your heart…” (Mishlei 6:20-21)

ו,כ נְצֹר בְּנִי, מִצְוַת אָבִיךָ; וְאַל-תִּטֹּשׁ, תּוֹרַת אִמֶּךָ.
ו,כא קָשְׁרֵם עַל-לִבְּךָ תָמִיד; עָנְדֵם, עַל-גַּרְגְּרֹתֶךָ.

3) “Bind them [the commandments] upon your fingers, write them upon the table of your heart” (Mishlei 7:2-3)

ז,ב שְׁמֹר מִצְו‍ֹתַי וֶחְיֵה; וְתוֹרָתִי, כְּאִישׁוֹן עֵינֶיךָ.
ז,ג קָשְׁרֵם עַל-אֶצְבְּעֹתֶיךָ; כָּתְבֵם, עַל-לוּחַ לִבֶּךָ.

On the words, “and a reminder between your eyes – so that God’s Torah may be in your mouth” (Shemot 13:9), the Mechilta comments: “From this the Rabbis taught that putting on Tefillin is equivalent to reading the Torah.” The analogy seems strange, for the mitzvah of Talmud Torah involves learning and understanding, performed with the intellect, while the mitzvah of Tefillin is performed through one’s body, via an object that the person places on him, with no element of study. The answer, argues R. Yaakov Nagen in a well written article in volume 10 of the Har Hevron publication, “Gulot,” is that when a person places Tefillin on his body, which contain passages from the Torah, he becomes connected to the Torah in a very tangible and direct manner. A person can cleave to Torah not only intellectually through learning the content of the mitzvot, but also in a physical manner by putting on Tefillin.

Nagen relates how, in the Tefillin discovered in the Qumran Caves, a number of passages were found, including the Ten Commandments that appear in the book of Devarim! This ancient custom would appear to be based on a literal understanding of the Shema’s words “these words which I command you this day” (Devarim 6:6), as relating to the Ten Commandments which were expounded earlier in the parsha. The Ten Commandments written on parchment constitute a condensation of the Torah, and placing them in the Tefillin transforms the Tefillin into a mini-Torah scroll!

Tefillin are literally black boxes – leather boxes painted black. But they are also figurative “black boxes,” like the device found in the cockpit of airplanes that records vital information about a flight, so that if, God forbid, a tragedy occurs, investigators will be able to determine the cause of action of the incident. We wear them on our foreheads, because we want these basic ideas about our faith to be in front of our eyes. Seeing them – in a very literal way – reminds us of the basic ideals of the Torah. But we are to see them also with our mind’s eye, internalizing their significance. And we also act on them, symbolized by binding the Tefillin around our arm. Tefillin are thus a sign and a remembrance of the need to internalize and actualize the values of the Torah in everything we do.

***

The verse in Devarim 6:9: וּכְתַבְתָּם עַל-מְזֻזוֹת בֵּיתֶךָ, וּבִשְׁעָרֶיךָ (“You shall write them on the doorposts of your house and on your gates”), can be understood in a similar vein. Here, too, we tend to jump to the conclusion that the verse refers solely to the duty to affix Mezuzot on our doorposts, following which act the duty ends. Yet, in fact, the verse is, first and foremost, a metaphor, to impress upon us the importance of inscribing the Torah and its values upon our homes and families.

The Torah thus cautions us against the insufficiency of simply going through the motions of donning Tefillin and davening in the morning, or affixing a Mezuzah and even kissing it as we enter and leave our house, without taking these experiences with us throughout the rest of the day. The Tefillin and Mezuzot are meant to serve as the means to a broader end, the “sign” prompting the “reminder” mentioned in our parsha. They are symbolic of the fact that our entire personalities, our lives and our homes are meant to be permeated with the Torah. Hashem’s commands should become an integral part of our very beings.

True, the Karaites also adopted an allegorical interpretation of the “Tefillin” and “Mezuzah” passages. However, this led them to the erroneous conclusion that the Torah does not command us literally to wear Tefillin and to affix a Mezuzah to our doorposts. The innovation of Chazal, in giving a literal interpretation to these passages, was to teach us that in order to achieve the lofty spiritual goal of suffusing ourselves and our families with the Torah and its values, the metaphor also needs to be performed in a literal manner – through the actual laying of Tefillin and writing of Mezuzot, for “actions shape character” (acharei ha’peulot nimshachim ha’levavot).

Wishing everyone a meaningful new year, in which we perform all of the mitzvot with added value and vigor, rather than by rote and routine!

Tefillin – A Sign and Reminder of Greater Things

וְהָיָה לְךָ לְאוֹת עַל-יָדְךָ, וּלְזִכָּרוֹן בֵּין עֵינֶיךָ, לְמַעַן תִּהְיֶה תּוֹרַת ה’, בְּפִיךָ: כִּי בְּיָד חֲזָקָה, הוֹצִאֲךָ ה’ מִמִּצְרָיִם (שמות יג,ט)

“And if shall be for you a sign on your hand and a reminder between your eyes – so that God’s Torah may be in your mouth…” (Shemot 13:9)

The classical interpretation of this verse (see Rashi and Ramban) is that the Torah is commanding us to place the Tefillin, containing the four sections from the Torah that speak about the Tefillin commandment, on our hand/arm and just before the hairline between our eyes.

In contrast, Rashbam (Rashi’s grandson) gives an allegorical interpretation to the verse in Shemot quoted above:

לאות על ידך” - לפי עומק פשוטו: יהיה לך לזכרון תמיד, כאלו כתוב על ידך. כעין, שימני כחותם על לבך.

בין עיניך” - כעין תכשיט ורביד זהב שרגילין ליתן על המצח לנוי.

For a sign upon your hand” – According to its plain meaning (omek peshuto): it shall be to you for a remembrance continually just as if it were inscribed upon your hand, similar to the verse “Set me as a seal upon your heart” (Shir HaShirim 8:6). “Between your eyes” – as an adornment and a golden tiara that is worn round the head as an adornment.

Rashbam interprets the “Tefillin passage” in our parsha as an allegory which demands that we remember the Torah always and treasure it like a piece of fine jewelry. The Torah should be like a fine bracelet or necklace which we wear proudly. In other words, the Torah is supposed to be precious to us and be remembered always.

This interpretation is borne out by the use of similar metaphors employed elsewhere in Tanach:

1) God’s Torah and His commandments are “a beautiful wreath to your head and a chain/necklace about your neck…” (Mishlei 1:8-9)

א,ח שְׁמַע בְּנִי, מוּסַר אָבִיךָ; וְאַל-תִּטֹּשׁ, תּוֹרַת אִמֶּךָ.
א,ט כִּי, לִוְיַת חֵן הֵם לְרֹאשֶׁךָ; וַעֲנָקִים, לְגַרְגְּרֹתֶךָ.

2) “Bind them [kindness and truth] about your neck, inscribe them upon the tablet of your heart…” (Mishlei 6:20-21)

ו,כ נְצֹר בְּנִי, מִצְוַת אָבִיךָ; וְאַל-תִּטֹּשׁ, תּוֹרַת אִמֶּךָ.
ו,כא קָשְׁרֵם עַל-לִבְּךָ תָמִיד; עָנְדֵם, עַל-גַּרְגְּרֹתֶךָ.

3) “Bind them [the commandments] upon your fingers, write them upon the table of your heart” (Mishlei 7:2-3)

ז,ב שְׁמֹר מִצְו‍ֹתַי וֶחְיֵה; וְתוֹרָתִי, כְּאִישׁוֹן עֵינֶיךָ.
ז,ג קָשְׁרֵם עַל-אֶצְבְּעֹתֶיךָ; כָּתְבֵם, עַל-לוּחַ לִבֶּךָ.

On the words, “and a reminder between your eyes – so that God’s Torah may be in your mouth” (Shemot 13:9), the Mechilta comments: “From this the Rabbis taught that putting on Tefillin is equivalent to reading the Torah.” The analogy seems strange, for the mitzvah of Talmud Torah involves learning and understanding, performed with the intellect, while the mitzvah of Tefillin is performed through one’s body, via an object that the person places on him, with no element of study. The answer, argues R. Yaakov Nagen in a well written article in volume 10 of the Har Hevron publication, “Gulot,” is that when a person places Tefillin on his body, which contain passages from the Torah, he becomes connected to the Torah in a very tangible and direct manner. A person can cleave to Torah not only intellectually through learning the content of the mitzvot, but also in a physical manner by putting on Tefillin.

Nagen relates how, in the Tefillin discovered in the Qumran Caves, a number of passages were found, including the Ten Commandments that appear in the book of Devarim! This ancient custom would appear to be based on a literal understanding of the Shema’s words “these words which I command you this day” (Devarim 6:6), as relating to the Ten Commandments which were expounded earlier in the parsha. The Ten Commandments written on parchment constitute a condensation of the Torah, and placing them in the Tefillin transforms the Tefillin into a mini-Torah scroll!

Tefillin are literally black boxes – leather boxes painted black. But they are also figurative “black boxes,” like the device found in the cockpit of airplanes that records vital information about a flight, so that if, God forbid, a tragedy occurs, investigators will be able to determine the cause of action of the incident. We wear them on our foreheads, because we want these basic ideas about our faith to be in front of our eyes. Seeing them – in a very literal way – reminds us of the basic ideals of the Torah. But we are to see them also with our mind’s eye, internalizing their significance. And we also act on them, symbolized by binding the Tefillin around our arm. Tefillin are thus a sign and a remembrance of the need to internalize and actualize the values of the Torah in everything we do.

***

The verse in Devarim 6:9: וּכְתַבְתָּם עַל-מְזֻזוֹת בֵּיתֶךָ, וּבִשְׁעָרֶיךָ (“You shall write them on the doorposts of your house and on your gates”), can be understood in a similar vein. Here, too, we tend to jump to the conclusion that the verse refers solely to the duty to affix Mezuzot on our doorposts, following which act the duty ends. Yet, in fact, the verse is, first and foremost, a metaphor, to impress upon us the importance of inscribing the Torah and its values upon our homes and families.

The Torah thus cautions us against the insufficiency of simply going through the motions of donning Tefillin and davening in the morning, or affixing a Mezuzah and even kissing it as we enter and leave our house, without taking these experiences with us throughout the rest of the day. The Tefillin and Mezuzot are meant to serve as the means to a broader end, the “sign” prompting the “reminder” mentioned in our parsha. They are symbolic of the fact that our entire personalities, our lives and our homes are meant to be permeated with the Torah. Hashem’s commands should become an integral part of our very beings.

True, the Karaites also adopted an allegorical interpretation of the “Tefillin” and “Mezuzah” passages. However, this led them to the erroneous conclusion that the Torah does not command us literally to wear Tefillin and to affix a Mezuzah to our doorposts. The innovation of Chazal, in giving a literal interpretation to these passages, was to teach us that in order to achieve the lofty spiritual goal of suffusing ourselves and our families with the Torah and its values, the metaphor also needs to be performed in a literal manner – through the actual laying of Tefillin and writing of Mezuzot, for “actions shape character” (acharei ha’peulot nimshachim ha’levavot).

Wishing everyone a meaningful new year, in which we perform all of the mitzvot with added value and vigor, rather than by rote and routine!

10 Frequently Asked Questions on Making a Will in Israel

10 Frequently Asked Questions on Making a Will in Israel

1. Why Should I Bother Making a Will?

Making a Will, which is usually a simple and relatively inexpensive document in Israel, can be a very straightforward expedient for avoiding intra-family conflict, squabbles and misunderstandings amongst your heirs. In addition, probating a Will, when the time comes, involves much less expense, time and bureaucracy than that required in order to obtain a Succession Order. Moreover, the latter may well distribute your estate in a manner which is less than ideal – for example, it may grant your widow only half of your estate, with the other half being distributed outright amongst your children. Your Will can also appoint named guardians to look after your children should you and your spouse die while they are still young or are incapable of managing their own affairs.

A Will can thus deal clearly and straightforwardly with issues such as:

  • whether you would like your spouse to take possession of all your assets after you die, or whether you would prefer to distribute your assets in a different manner, e.g. half to your spouse and the other half to your children, or to children from a former marriage;
  • whether any of your children have special needs, which may justify an unequal division of your assets;
  • whether your grandchildren should inherit the share of your estate that their parent would have inherited had s/he been alive on the date of your death;
  • whether a trust ought to be established to preserve the assets of your estate after your demise, in order to allow for their distribution only after the beneficiaries have reached a certain age (usually 21 years of age in the case of Israeli beneficiaries, after Army service);
  • whether you would like to make any special bequests of any items of monetary or sentimental value to ensure their use for one or more generations to come;
  • whether you would like to include a long-stop provision to cover the possibility that, God forbid, your entire family (children and grandchildren included) might die in a plane or car accident, etc.
  • the appointment of named guardians over your children, should you die before any of them reach the age of 18 or 21.

 

2. One or Two Wills?!

(a) I made Aliyah but still have assets abroad. Can I cover all of my assets with one Will made in Israel?

Technically, yes, although on reaching the age of 120 your Israeli Will would then need to be probated in more than one jurisdiction, which can be a costly and bureaucratic procedure.

As a general rule, a person who owns assets in different countries or jurisdictions is therefore advised to prepare a separate legal Will in each jurisdiction, in order to avoid unnecessary tax and other complications in the future. So, if my wife and I own assets in Israel but we still own assets in England and America, between us we should sign three separate wills: one in Israel and in the UK for me, and one in Israel and the US for my wife.

(b) If the vast majority of my assets have been moved to Israel, need I still make a separate Will abroad?

In our last tip, we advised making separate Wills for each separate jurisdiction in which you have assets. However, there may be occasions when you don’t need to make a separate Will abroad at all.

For example, if you own a bank account abroad, you can simply complete a “nominated beneficiary” form, through which you designate one or more family members or other beneficiaries to receive the proceeds of your account once you die. In this manner, your few overseas assets will pass independently of any Will that you have drafted, thus preventing them being frozen upon your death until such time as the relevant Will is probated or a succession order is made in case of intestacy.

 

3. What Does Probate Mean?

‘Probate’ is a term commonly used when talking about applying for the right to deal with a deceased person’s affairs generally – and specifically to resolve all claims and to distribute the deceased person’s property under a valid Will. A “Grant of Probate” (Tzav Kiyum Tzava’ah) confirms the validity of a deceased person’s Will. Once a Will has been probated by the Israeli Succession Registrar (Ha’Rasham Le’Inyanei Yerusha), or by the Family Matters Court (Beit HaMishpat Le’Inyanei Mishpacha) in less straightforward cases, everyone can rely on its authenticity. Probate thus protects the instructions of the deceased, confirms the executor as the person entitled to deal with the deceased’s estate in accordance with his Will, protects the interests of family members who may have claims against the estate, and protects the executor against claims and lawsuits.

4. The Appointment of Executors in One’s Will

An executor is a person or trust company whom you name in your Will to carry out (“execute”) your wishes and distribute your estate when you die. Your estate is what you own at the time of your death. It may include all kinds of property such as a car, a house, a cottage, land, furniture and jewelry. Other property may come into your estate after your death, such as interest on investments and income from rental property.

The executor’s responsibilities include obtaining the original copy of your Will; taking control of your estate and make a list of your property; applying to the court for probate, where appropriate; administering the estate and paying off all outstanding debts; and distributing your property according to your wishes as set out in your Will.

(a) Is it advisable for me to appoint an executor in my Will – or not?

Unlike in other jurisdictions, the appointment of an executor is not required under Israeli law. Indeed, if the estate is small or straightforward, it is probably not necessary, albeit that an executor can assist in the efficient distribution of the estate. The appointment of an executor can add considerably to the costs of winding up an estate, as the executor is required to file with the Administrator General’s Office (האפוטרופוס הכללי) an inventory of all the estate’s assets and an annual report of his dealings with those assets, as well as various applications to the court.

(b) When ought an executor to be appointed?

One or more executors ought to be appointed under your Will, in cases where complications can be foreseen, e.g. in cases of potential disputes between beneficiaries, such as where the testator has children from a previous marriage. Even such cases may not require the appointment of an executor – I once had the good fortune to be inspired by an elderly couple (his second marriage with children from his first wife, her first marriage with no children), where it was clear that the new wife got on so well with the children of her husband’s first marriage that she wanted to leave 90% of their assets to them!

An application to appoint an executor would need to be made, for example, when one of the beneficiaries cannot be traced.

(c) Should family members be appointed as one’s executor?

You can choose either a person or a trust company to act as your executor. If you choose a person to be your executor he or she must be 18 years or older. Most people choose a relative or close friend as executor. If your estate is large or complicated you may wish to appoint a professional person to act as your executor, such as your lawyer or accountant, or even both.

Family members will usually agree to administer the estate without taking a fee. If you wish to name a family member in your Will, you should always discuss the role with the person in advance so that the person you choose knows what is involved with the job. Remember, also, that the person you name in your Will as executor has the right to refuse to act as your executor. Being a financial or legal expert is not necessary, as long as your executors have access to competent advisors to advise and assist them in the administration of the estate. However, executors cannot leave important decisions to others, such as whether to sell an asset or whether to invest in shares or bonds.

By contrast, if your estate is large or complicated, or you prefer not to have friends or family act as your executor, or you feel that family members of friends do not have the necessary time or experience, you should consider appointing a professional executor, despite the fact that such a person Will expect to be paid for their professional services rendered when winding up an estate. Professionals may offer the familiarity with tax law, investment management, real estate or business administration which is required to administer your estate.

(d) Should I choose an alternate executor?

Yes, you should appoint an alternate to replace your executor in case your first choice is unwilling or unable to act as executor at your death. Even if you have chosen your spouse to be your executor it is a good idea to choose an alternate. If your executor is unable to act and you have not named an alternate in your Will, the Probate Court will have to appoint one, assuming an executor is required.

 

5. Appointment of Trustees

(a) What is a trustee and what is the difference between an executor and a trustee?

The executors distribute and administer the testator’s estate after his death. The trustees will take over and manage any trust to be created under the Will once the estate administration has been completed.

(b) When ought a trustee be appointed?

Trustees may not always be required. In the case of a simple Will, there is usually no need to create a trust. In other more complex situations the testator may need to create a trust, such as where a minor beneficiary has an interest in the estate and the property cannot be distributed to that minor as he cannot give a good receipt, or where the testator does not wish the minor to inherit his interest in the estate until he reaches a certain age (often 21 in Israel, after the conclusion of IDF service).

 

6. The Procedure for Signing my Will

Once you have approved the wording of your Will, you should:

  • Print out two copies of the Will (three copies if you are a couple), one for each of you and one for the executor, if one has been nominated in the Will.
  • Sign and date the final page of the Will, in the presence of two independent, adult witnesses (who should be of sound mind and not related to each other or to you).
  • Append your initials at the bottom of the other pages of the Will.
  • After you have signed and dated the Will, the witnesses should sign their names where indicated on the final page of both copies of the Will. They should then add their full names, I.D. numbers and addresses beneath their signatures.
  • Finally, the witnesses should also append their initials at the bottom of the other pages of the Will.
  • One of the signed Wills should be kept by you in a safe place, while the other should be delivered to your executor (if one has been nominated under the Will).

7. Signing one’s Will before a notary – what are the advantages?

(a) Do I need to sign my Will before a Notary?

By Israeli law, your Will is valid if signed in the presence of two or more ordinary witnesses over the age of 18 who are present and witness the Will at the same time as you sign. Both you and the two witnesses must be of sound mind, and none of you should be related.

(b) Are there any advantages to signing a Will before a Notary?

As mentioned above, by Israeli law, a last will and testament is valid if signed by its maker (known also as the ‘testator’/’testatrix’) in the presence of two ordinary witnesses. At times, however, a person making a will may choose to sign it before an Israeli Notary. The Notary confirms that the will has been read to the testator and that the testator declared of his own volition that it was his last will.

The advantage of signing a will before a Notary is two-fold:

  • the testator may state his will orally or in writing in the Notary’s presence, without the need for any additional witnesses;
  • a notarial will has stronger weight than other types of wills under Israeli law (it is akin to a will signed before a judge), thus eliminating the potential for any future claims of fraudulent signature by the testator, such as on the basis of undue influence or duress, which might result in the will’s disqualification.

Notarized Wills can thus be kept totally secret – no-one need know of their existence; and the presumption will be that the testator was of sound mind and memory and free from any influence or duress whatsoever, when signing his Will.


8. What is the Procedure for Changing my Will Once it Has Been Signed?

Your Will can be changed whenever you wish, either by means of a codicil (nispach, in Hebrew) or simply by drafting a new Will (which is usually the cleanest and best option, assuming the original Will has been saved on the computer).

It is advisable to review one’s Will for any important changes at regular intervals (for example, once every five years).

That said, ideally one’s original Will should be drafted in such a way, as to obviate the need for any simple changes – for example, by avoiding naming one’s children who Will inherit in equal shares, when further children might be born in the years ahead (or, alternatively, stating: “My children now living are…”).

 

9. What is a “Tofes Arichut Yamim” and how can it bypass the Will?

This is a form, which a couple are advised to ask their bank to sign, either when opening their account or afterwards. It appoints both spouses as co-owners of their bank account. This simple expedient enables either spouse to continue to act in the account even after the death of the other spouse (the “right of survivorship”). Without this device, the account would be automatically frozen upon the death of one spouse, and the bank will only agree to allow dealings in the account upon the presentation of a Probate Order (where there is a Will) or Succession Order (upon intestacy).

The procedure can also be useful in the case of elderly relatives, to enable one or more of their children, for example, to handle their finances on their behalf – without the need to sign a power of attorney document before a Notary (which document will, in any event, lapse automatically upon the account holder’s death). Of course, such an expedient should only be used if there is complete trust between the elderly person and his or her relative.

10. I am a Torah-observant Jew and believe it healthy and proper in modern times for all my children to inherit an equal share of my estate after I die, including my firstborn son and my daughters. Can a Will be drafted so as to comply with the requirements of both Halachic and modern Israeli law?

According to Jewish Law, only male offspring are capable of inheriting their father’s estate. The Torah awards women no rights of inheritance as long as there are male heirs in the same class. So, daughters will not inherit if there are sons, and sisters will not inherit if there are brothers. Moreover, when the first born is a male, he is entitled to a double portion – two shares of the tangible assets of the estate. The upshot of the above is that a person, according to the strict letter of the law, is unable to distribute his estate to non-halachic heirs, such as a wife or a daughter, or in a way which would deprive his firstborn of his halachic entitlement to a double portion, without violating the Halacha.

One way around this challenge is to make a gift of one’s property at any time he is capable of doing so, before his death, for example to his daughters. In practice, however, the maker of the will may be unable to part with his possessions during his lifetime, which is a drawback of making an outright gift. Moreover, it is not possible for a gift made during his lifetime to be effective after the will-maker’s death – because, according to the Halacha, at the moment of death the title to his possessions vests automatically in his heirs! The way of getting round this quandary is to draft a legal instrument, which would enable the beneficiary to take immediate title to the property – but, at the same time, would enable the donor to retain the right to all income earned during his lifetime, as well as to revoke the trust whenever he desires. This is known as a “revocable inter-vivos trust.” The drawback to this method is that the majority of halachic authorities require a formal transfer of title to the property (kinyan) to be binding and such a kinyan will only be effective in transferring property which is currently in the donor’s possession at the time of the kinyan! It would have no effect on property yet to be acquired, such property not being yet in existence (davar sh-lo ba le’olam) – see: Bava Metzia 46a, Tur and Shulchan Aruch, Choshen Mishpat 203, 209). Yet a conventional will generally deals with future holdings as well.

A different way to circumvent the halachic restrictions on inheritance is by creating an Indebtedness. Simply put, this method enables a person to draft a secular will, while effectively distributing his estate equally to both male and female heirs. He does so by creating an indebtedness well in excess of the total value of his estate, as leverage to encourage his sons to carry out the terms of his will. Should they fail to do so, the will would require them to pay the full monetary debt to the daughters (or non-firstborn sons). This debt becomes a lien on all of the will-maker’s property – both current and future holdings. This technique was primarily used to give daughters a half share or full share in one’s estate and is known as shtar chatzi zachar (half share) or shtar zachar shaleim (full share). Such a document was often drawn up and delivered to a daughter at the time of her marriage.

In view of the above halachic problems/challenges, and in light of the above suggested potential solutions, the writer draws up two documents for religious clients interested in making an Israeli Will. The first is a standard, secular will, drafted in Hebrew or English, according to the laws of the State of Israel, tailored to the specific needs of the client – which usually involve distributing each will-maker’s property to the surviving spouse and then to each of his/her children (whether male or female) in equal shares (whether firstborn or otherwise). The second document constitutes a “Halachic Wills Appendix,” based on a Hebrew document drafted by Rav Zvi Yehuda ben Ya’akov, a Dayan on the Tel-Aviv Regional Rabbinical Court. This document effectively enables the secular will to comply with the requirements of Halacha, combining as it does the elements of the gift approach (for property on which a kinyan can work) and the penalty payment mechanism (in the sum of double the share that each beneficiary would be entitled to receive under the secular will, in the event that the sons do not pay their full monetary obligations to the daughters under the ‘note’ of indebtedness). The “Halachic Wills Appendix” is drafted, as mentioned, in a separate document – which has the added advantage that it need not be brought to the attention of a non-religious judge (who may otherwise be confused at best, particularly by its unusual “indebtedness” provisions) at the time the ordinary, secular will is probated.

For further advice and assistance in making an Israeli or UK Will, or a Halachic Wills Appendix, feel free to contact Simon: 0737-40-60-40 / 0545-742-374 / simon@jacksonadvocates.net

 

 

 

10 Frequently Asked Questions on Making a Will in Israel

1. Why Should I Bother Making a Will?

Making a Will, which is usually a simple and relatively inexpensive document in Israel, can be a very straightforward expedient for avoiding intra-family conflict, squabbles and misunderstandings amongst your heirs. In addition, probating a Will, when the time comes, involves much less expense, time and bureaucracy than that required in order to obtain a Succession Order. Moreover, the latter may well distribute your estate in a manner which is less than ideal – for example, it may grant your widow only half of your estate, with the other half being distributed outright amongst your children. Your Will can also appoint named guardians to look after your children should you and your spouse die while they are still young or are incapable of managing their own affairs.

A Will can thus deal clearly and straightforwardly with issues such as:

  • whether you would like your spouse to take possession of all your assets after you die, or whether you would prefer to distribute your assets in a different manner, e.g. half to your spouse and the other half to your children, or to children from a former marriage;
  • whether any of your children have special needs, which may justify an unequal division of your assets;
  • whether your grandchildren should inherit the share of your estate that their parent would have inherited had s/he been alive on the date of your death;
  • whether a trust ought to be established to preserve the assets of your estate after your demise, in order to allow for their distribution only after the beneficiaries have reached a certain age (usually 21 years of age in the case of Israeli beneficiaries, after Army service);
  • whether you would like to make any special bequests of any items of monetary or sentimental value to ensure their use for one or more generations to come;
  • whether you would like to include a long-stop provision to cover the possibility that, God forbid, your entire family (children and grandchildren included) might die in a plane or car accident, etc.
  • the appointment of named guardians over your children, should you die before any of them reach the age of 18 or 21.

 

2. One or Two Wills?!

(a) I made Aliyah but still have assets abroad. Can I cover all of my assets with one Will made in Israel?

Technically, yes, although on reaching the age of 120 your Israeli Will would then need to be probated in more than one jurisdiction, which can be a costly and bureaucratic procedure.

As a general rule, a person who owns assets in different countries or jurisdictions is therefore advised to prepare a separate legal Will in each jurisdiction, in order to avoid unnecessary tax and other complications in the future. So, if my wife and I own assets in Israel but we still own assets in England and America, between us we should sign three separate wills: one in Israel and in the UK for me, and one in Israel and the US for my wife.

(b) If the vast majority of my assets have been moved to Israel, need I still make a separate Will abroad?

In our last tip, we advised making separate Wills for each separate jurisdiction in which you have assets. However, there may be occasions when you don’t need to make a separate Will abroad at all.

For example, if you own a bank account abroad, you can simply complete a “nominated beneficiary” form, through which you designate one or more family members or other beneficiaries to receive the proceeds of your account once you die. In this manner, your few overseas assets will pass independently of any Will that you have drafted, thus preventing them being frozen upon your death until such time as the relevant Will is probated or a succession order is made in case of intestacy.

 

3. What Does Probate Mean?

‘Probate’ is a term commonly used when talking about applying for the right to deal with a deceased person’s affairs generally – and specifically to resolve all claims and to distribute the deceased person’s property under a valid Will. A “Grant of Probate” (Tzav Kiyum Tzava’ah) confirms the validity of a deceased person’s Will. Once a Will has been probated by the Israeli Succession Registrar (Ha’Rasham Le’Inyanei Yerusha), or by the Family Matters Court (Beit HaMishpat Le’Inyanei Mishpacha) in less straightforward cases, everyone can rely on its authenticity. Probate thus protects the instructions of the deceased, confirms the executor as the person entitled to deal with the deceased’s estate in accordance with his Will, protects the interests of family members who may have claims against the estate, and protects the executor against claims and lawsuits.

4. The Appointment of Executors in One’s Will

An executor is a person or trust company whom you name in your Will to carry out (“execute”) your wishes and distribute your estate when you die. Your estate is what you own at the time of your death. It may include all kinds of property such as a car, a house, a cottage, land, furniture and jewelry. Other property may come into your estate after your death, such as interest on investments and income from rental property.

The executor’s responsibilities include obtaining the original copy of your Will; taking control of your estate and make a list of your property; applying to the court for probate, where appropriate; administering the estate and paying off all outstanding debts; and distributing your property according to your wishes as set out in your Will.

(a) Is it advisable for me to appoint an executor in my Will – or not?

Unlike in other jurisdictions, the appointment of an executor is not required under Israeli law. Indeed, if the estate is small or straightforward, it is probably not necessary, albeit that an executor can assist in the efficient distribution of the estate. The appointment of an executor can add considerably to the costs of winding up an estate, as the executor is required to file with the Administrator General’s Office (האפוטרופוס הכללי) an inventory of all the estate’s assets and an annual report of his dealings with those assets, as well as various applications to the court.

(b) When ought an executor to be appointed?

One or more executors ought to be appointed under your Will, in cases where complications can be foreseen, e.g. in cases of potential disputes between beneficiaries, such as where the testator has children from a previous marriage. Even such cases may not require the appointment of an executor – I once had the good fortune to be inspired by an elderly couple (his second marriage with children from his first wife, her first marriage with no children), where it was clear that the new wife got on so well with the children of her husband’s first marriage that she wanted to leave 90% of their assets to them!

An application to appoint an executor would need to be made, for example, when one of the beneficiaries cannot be traced.

(c) Should family members be appointed as one’s executor?

You can choose either a person or a trust company to act as your executor. If you choose a person to be your executor he or she must be 18 years or older. Most people choose a relative or close friend as executor. If your estate is large or complicated you may wish to appoint a professional person to act as your executor, such as your lawyer or accountant, or even both.

Family members will usually agree to administer the estate without taking a fee. If you wish to name a family member in your Will, you should always discuss the role with the person in advance so that the person you choose knows what is involved with the job. Remember, also, that the person you name in your Will as executor has the right to refuse to act as your executor. Being a financial or legal expert is not necessary, as long as your executors have access to competent advisors to advise and assist them in the administration of the estate. However, executors cannot leave important decisions to others, such as whether to sell an asset or whether to invest in shares or bonds.

By contrast, if your estate is large or complicated, or you prefer not to have friends or family act as your executor, or you feel that family members of friends do not have the necessary time or experience, you should consider appointing a professional executor, despite the fact that such a person Will expect to be paid for their professional services rendered when winding up an estate. Professionals may offer the familiarity with tax law, investment management, real estate or business administration which is required to administer your estate.

(d) Should I choose an alternate executor?

Yes, you should appoint an alternate to replace your executor in case your first choice is unwilling or unable to act as executor at your death. Even if you have chosen your spouse to be your executor it is a good idea to choose an alternate. If your executor is unable to act and you have not named an alternate in your Will, the Probate Court will have to appoint one, assuming an executor is required.

 

5. Appointment of Trustees

(a) What is a trustee and what is the difference between an executor and a trustee?

The executors distribute and administer the testator’s estate after his death. The trustees will take over and manage any trust to be created under the Will once the estate administration has been completed.

(b) When ought a trustee be appointed?

Trustees may not always be required. In the case of a simple Will, there is usually no need to create a trust. In other more complex situations the testator may need to create a trust, such as where a minor beneficiary has an interest in the estate and the property cannot be distributed to that minor as he cannot give a good receipt, or where the testator does not wish the minor to inherit his interest in the estate until he reaches a certain age (often 21 in Israel, after the conclusion of IDF service).

 

6. The Procedure for Signing my Will

Once you have approved the wording of your Will, you should:

  • Print out two copies of the Will (three copies if you are a couple), one for each of you and one for the executor, if one has been nominated in the Will.
  • Sign and date the final page of the Will, in the presence of two independent, adult witnesses (who should be of sound mind and not related to each other or to you).
  • Append your initials at the bottom of the other pages of the Will.
  • After you have signed and dated the Will, the witnesses should sign their names where indicated on the final page of both copies of the Will. They should then add their full names, I.D. numbers and addresses beneath their signatures.
  • Finally, the witnesses should also append their initials at the bottom of the other pages of the Will.
  • One of the signed Wills should be kept by you in a safe place, while the other should be delivered to your executor (if one has been nominated under the Will).

7. Signing one’s Will before a notary – what are the advantages?

(a) Do I need to sign my Will before a Notary?

By Israeli law, your Will is valid if signed in the presence of two or more ordinary witnesses over the age of 18 who are present and witness the Will at the same time as you sign. Both you and the two witnesses must be of sound mind, and none of you should be related.

(b) Are there any advantages to signing a Will before a Notary?

As mentioned above, by Israeli law, a last will and testament is valid if signed by its maker (known also as the ‘testator’/’testatrix’) in the presence of two ordinary witnesses. At times, however, a person making a will may choose to sign it before an Israeli Notary. The Notary confirms that the will has been read to the testator and that the testator declared of his own volition that it was his last will.

The advantage of signing a will before a Notary is two-fold:

  • the testator may state his will orally or in writing in the Notary’s presence, without the need for any additional witnesses;
  • a notarial will has stronger weight than other types of wills under Israeli law (it is akin to a will signed before a judge), thus eliminating the potential for any future claims of fraudulent signature by the testator, such as on the basis of undue influence or duress, which might result in the will’s disqualification.

Notarized Wills can thus be kept totally secret – no-one need know of their existence; and the presumption will be that the testator was of sound mind and memory and free from any influence or duress whatsoever, when signing his Will.


8. What is the Procedure for Changing my Will Once it Has Been Signed?

Your Will can be changed whenever you wish, either by means of a codicil (nispach, in Hebrew) or simply by drafting a new Will (which is usually the cleanest and best option, assuming the original Will has been saved on the computer).

It is advisable to review one’s Will for any important changes at regular intervals (for example, once every five years).

That said, ideally one’s original Will should be drafted in such a way, as to obviate the need for any simple changes – for example, by avoiding naming one’s children who Will inherit in equal shares, when further children might be born in the years ahead (or, alternatively, stating: “My children now living are…”).

 

9. What is a “Tofes Arichut Yamim” and how can it bypass the Will?

This is a form, which a couple are advised to ask their bank to sign, either when opening their account or afterwards. It appoints both spouses as co-owners of their bank account. This simple expedient enables either spouse to continue to act in the account even after the death of the other spouse (the “right of survivorship”). Without this device, the account would be automatically frozen upon the death of one spouse, and the bank will only agree to allow dealings in the account upon the presentation of a Probate Order (where there is a Will) or Succession Order (upon intestacy).

The procedure can also be useful in the case of elderly relatives, to enable one or more of their children, for example, to handle their finances on their behalf – without the need to sign a power of attorney document before a Notary (which document will, in any event, lapse automatically upon the account holder’s death). Of course, such an expedient should only be used if there is complete trust between the elderly person and his or her relative.

10. I am a Torah-observant Jew and believe it healthy and proper in modern times for all my children to inherit an equal share of my estate after I die, including my firstborn son and my daughters. Can a Will be drafted so as to comply with the requirements of both Halachic and modern Israeli law?

According to Jewish Law, only male offspring are capable of inheriting their father’s estate. The Torah awards women no rights of inheritance as long as there are male heirs in the same class. So, daughters will not inherit if there are sons, and sisters will not inherit if there are brothers. Moreover, when the first born is a male, he is entitled to a double portion – two shares of the tangible assets of the estate. The upshot of the above is that a person, according to the strict letter of the law, is unable to distribute his estate to non-halachic heirs, such as a wife or a daughter, or in a way which would deprive his firstborn of his halachic entitlement to a double portion, without violating the Halacha.

One way around this challenge is to make a gift of one’s property at any time he is capable of doing so, before his death, for example to his daughters. In practice, however, the maker of the will may be unable to part with his possessions during his lifetime, which is a drawback of making an outright gift. Moreover, it is not possible for a gift made during his lifetime to be effective after the will-maker’s death – because, according to the Halacha, at the moment of death the title to his possessions vests automatically in his heirs! The way of getting round this quandary is to draft a legal instrument, which would enable the beneficiary to take immediate title to the property – but, at the same time, would enable the donor to retain the right to all income earned during his lifetime, as well as to revoke the trust whenever he desires. This is known as a “revocable inter-vivos trust.” The drawback to this method is that the majority of halachic authorities require a formal transfer of title to the property (kinyan) to be binding and such a kinyan will only be effective in transferring property which is currently in the donor’s possession at the time of the kinyan! It would have no effect on property yet to be acquired, such property not being yet in existence (davar sh-lo ba le’olam) – see: Bava Metzia 46a, Tur and Shulchan Aruch, Choshen Mishpat 203, 209). Yet a conventional will generally deals with future holdings as well.

A different way to circumvent the halachic restrictions on inheritance is by creating an Indebtedness. Simply put, this method enables a person to draft a secular will, while effectively distributing his estate equally to both male and female heirs. He does so by creating an indebtedness well in excess of the total value of his estate, as leverage to encourage his sons to carry out the terms of his will. Should they fail to do so, the will would require them to pay the full monetary debt to the daughters (or non-firstborn sons). This debt becomes a lien on all of the will-maker’s property – both current and future holdings. This technique was primarily used to give daughters a half share or full share in one’s estate and is known as shtar chatzi zachar (half share) or shtar zachar shaleim (full share). Such a document was often drawn up and delivered to a daughter at the time of her marriage.

In view of the above halachic problems/challenges, and in light of the above suggested potential solutions, the writer draws up two documents for religious clients interested in making an Israeli Will. The first is a standard, secular will, drafted in Hebrew or English, according to the laws of the State of Israel, tailored to the specific needs of the client – which usually involve distributing each will-maker’s property to the surviving spouse and then to each of his/her children (whether male or female) in equal shares (whether firstborn or otherwise). The second document constitutes a “Halachic Wills Appendix,” based on a Hebrew document drafted by Rav Zvi Yehuda ben Ya’akov, a Dayan on the Tel-Aviv Regional Rabbinical Court. This document effectively enables the secular will to comply with the requirements of Halacha, combining as it does the elements of the gift approach (for property on which a kinyan can work) and the penalty payment mechanism (in the sum of double the share that each beneficiary would be entitled to receive under the secular will, in the event that the sons do not pay their full monetary obligations to the daughters under the ‘note’ of indebtedness). The “Halachic Wills Appendix” is drafted, as mentioned, in a separate document – which has the added advantage that it need not be brought to the attention of a non-religious judge (who may otherwise be confused at best, particularly by its unusual “indebtedness” provisions) at the time the ordinary, secular will is probated.

For further advice and assistance in making an Israeli or UK Will, or a Halachic Wills Appendix, feel free to contact Simon: 0737-40-60-40 / 0545-742-374 / simon@jacksonadvocates.net