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Relaxed Formalism: The Validation of Flawed Wills

Published online by Cambridge University Press:  04 July 2014

Doron Menashe
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Abstract

This Article analyzes the probative standard set by Section 25 of the Succession Law, which, provided that certain basic conditions are met, enables the validation of flawed wills. The Article presents the position taken by the Supreme Court, according to which Section 25 requires that prior to its validation, the authenticity of a will be proven beyond any doubt. This standard is criticized as impracticable and normatively flawed, as is another standard, suggested by some Supreme Court Justices, which would impose on those wishing to validate a flawed will a standard of proof similar to that required in criminal law.

The Article then attempts to create a desirable model for the probative standard found in Section 25. This model is based on disutility equations for decision-making under conditions of uncertainty; it leads to the conclusion that the standard that should be required in order that flawed wills be validated is considerably lower than that demanded by today s case law. The Article claims that there is no significant risk that testators might be led to disregard or neglect the formal requirements set by the Succession Law for writing wills.

In conclusion, some arguments are presented in support of a revolutionary hypothesis: I suggest that the Supreme Court's interpretation of Section 25 reflects an ideology that prefers the mode of asset distribution prescribed by inheritance law over alternative modes, created by individual wills. The Court's preference, however, is not grounded (and cannot reasonably be grounded) in the desire to fulfill the testator's wishes; but rather perhaps it is an expression of the legal system's conception of distributive justice.

Type
Research Article
Information
Israel Law Review , Volume 40 , Issue 1 , Spring 2007 , pp. 119 - 155
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Lecturer, Law Faculty, Haifa University. I am grateful to Mr. Rabeea' A'ssy for his excellent comments on previous draft. An earlier version of this Article was published in Hebrew in Menashe Shava (Daniel Friedmann ed., 2006).

References

1 The Succession Law, 19 L.S.I. 58 (1964-65) (Isr.).

2 On March 2, 2004.

3 For the development of case law in this field, see CA 869/75 the Bril v. Government Adviser [1977] IsrSC 32(1) 98; FH 40/80 Kenig v. Cohen [1982] IsrSC 36(3) 701; CA 284/84 Azriel v. Government Legal Adviser [1985] IsrSC 39(3) 166; CA 2098/97 Buskila v. Buskila [2001] IsrSC 55(3) 837.

4 See, e.g., Bril v. the Government Advisor, supra note 3, at 102 (opinion of Justice H. Cohen); CA 122/86 Shapir v. Klivansky [1990] IsrSC 44(1) 738, 742 (opinion of Justice Netanyahu, para. 5); and CA 724/87 Kalfa (Gold) v. Gold [1994] IsrSC 48(1) 22, 29 (opinion of Justice Maltz). Justice Maltz notes the basic principle of the Succession Law, derived from the concept of human dignity. The Succession Law requires us to respect the last wishes of the testator, as part of the dignity of the dead; and to respect the right to property—which is also protected by Basic Law: Human Dignity and Liberty, 1992 S.H. 150. 150—by carrying out the testator's last wishes as to how her property should be dealt with after she dies. See also Shohat, Saul, Flaws in Wills 23–26 (2nd ed. 2001) [in Hebrew]Google Scholar. These aims also match the objectives of Sections 30(b), 31, 32, 38(b) and 54(b) of the Succession Law, supra note 1 which set general rules for the preference of the validation of a will over its annulment. But see the critical discussion in this Paper, particularly in Part VI: Heretical Reflections on the Objective of Inheritance Law.

5 The Succession Law, supra note 1, at § 18.

6 See CA 4902/91 Goodman v. Mousyouf Shem Beit Midrash Gavohah Yeshiva [1995] IsrSC 49(2) 441, 451.

7 The Supreme Court decision in Kenig v. Cohen, supra note 3, is a very sad example of the rigidity of probate law's formal requirements: A woman who wanted to exclude her husband from her estate expressed this desire, in a few notes, moments before committing suicide. The Court had no doubt that the notes expressed the deceased's last wishes. Nonetheless, because the notes were unsigned and undated, the Court decided that they did not constitute a will.

Another case in which the testator's personal and subjective will was rejected as a result of the non-fulfillment of formal requirements was the Supreme Court's decision in CA 679/76 Sali v. Shefer [1978] IsrSC 32(2) 785. In that case, the undisputed facts were that the deceased, who was childless, meant to leave money, held in various bank accounts, to a girl whom he loved and whom he treated as a granddaughter. The deceased even made the girl a joint owner of his accounts. Even so, the Court declined to recognize as a will the deceased's “instruction sheet,” requesting his bank make the girl full owner of the accounts at the time of his death, because this form lacked the formal characteristics of a will defined by the Succession Law. For further illustration, see CA 493/83 Abu Sanina v. Taha [1985] IsrSC 39(4) 639.

8 See CA 436/01 Rachab v. Rachab [March 31, 2003] (not yet published) (opinion of the recently retired President Barak, at para. 18). See also CA 719/97 Aharon v. Aharoni [2000] IsrSC 54(5) 469, 477; FH Aharon v. Aharoni (March 27, 2005) (opinion of Justice Matza, para. 13; opinion of Justice Arbel, para. 10 and sources cited therein). See also Shilo, Shmuel, An Interpretation of the Succession Law, 1965 (1992) 228–229 [in Hebrew]Google Scholar. These are the classic objectives of formal requirements. For a discussion of this topic, see Frjedmann, Daniel & Cohn, Nilli, Contracts (2001) 389–394 [in Hebrew]Google Scholar.

9 Professor Shilo has also referred to this objective, albeit in a qualified and somewhat hesitant manner. See Shilo, supra note 8. id. See also Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799, 800-806 (1941). Authorized references to the role of channeling can be found in FH Aharon v. Aharoni, supra note 8 (opinion of Justice Matza, at para. 23; opinion of Justice Arbel, at para. 10).

10 This is one of the tacit functions of the law. See Mautner, Menachem, The Tacit Law, in A Gesture for Isaac 59, 60–62 (Shava, Menashe & Barak, Aharon eds., 1999) [in Hebrew]Google Scholar.

11 von Jhering, Rudolf, Geist des Romischen Rechts 494 (1968)Google Scholar. The complete quotation can be found in Fuller, supra note 9, at 810. Cf. also Llewellyn, Karl N., What Price Contract? An Essay in Perspective, 40 Yale L.J. 704, 738 (1931)CrossRefGoogle Scholar.

12 Id. at 801-3.

13 Id. at 802.

14 See, e.g., Rachab v. Rachab, supra note 8 (opinion of President Barak, para. 18); See also Shilo, supra note 8, at 244-77. Thus, for instance, the requirement that a will be made out in handwriting does not significantly guarantee the absence of undue influence. The same is true of a will made before witnesses: There can be no guarantee that witnesses are not involved in any undue influence or that their presence neutralizes the effect of any such influence (for example, influence due to relationships in which the testator is dependent on or subordinate to another person). The fact is that under certain circumstances, a presumption of undue influence born of dependency arises. One such (irrefutable) presumption is the basis of Section 35 of the Succession Law, which prevents the beneficiary of a will from taking part in the making of it. See Shilo, id. at 307-27. Case law has recognized two categories that create a refutable presumption of undue influence: for instance, when the relationship between testator and beneficiary is grounded in trust—doctor-patient, priest-confessor, etc.—or when the testator is comprehensively and fundamentally dependant on the beneficiary, as in the case of an invalid dependant on his caregiver. The idea common to all of these presumptions is that under these conditions it is reasonable to assume that the testator's free will is compromised. For an elaboration on this, see id. at 272; see also CA 133/84 Rechtman v. Zisman [1986] IsrSC 39(4) 769; CA 423/75 Bin Nun v. Richter [1976] IsrSC 31(1) 372, 378; Goodman v. Mousyouf Shem Beit Midrash Gavohah Yeshiva, supra note 6, at 448-51. Moreover, even if the court's approach, according to which these formal conditions do reduce the probability of undue influence, is correct, such presumptions can only be justified as flexible and contextdependant evidentiary rules; rigid application of these rules does not apparently fit the judicial commitment to carrying out the testator's wishes in each and every case.

15 See, e.g., Fuller, supra note 9, at 803-804.

16 Professor Shilo mentions that when it was legislated, in 1965, Section 25 was a unique innovation on a global scale. Until that time, no legal system included a corresponding provision, that is, a rule enabling courts to sidestep the formal requirements of a will and to validate a formally flawed will. Since then, similar instructions have been incorporated in various legal systems worldwide. These include a few states in the U.S., which have adopted section 2-503 of the Uniform Probate Code, as well as some Australian states and some Canadian provinces. The U.K. does not yet have a similar rule. See Justice Arbel's comparative legal survey in FH Aharon v. Aharoni, supra note 8 (para. 22 of her decision). At the time the section was enacted, it was comprised of a single paragraph, stating that “[w]here the Court has no doubt as to the genuineness of a will, it may grant probate thereof notwithstanding any defect with regard to the signature of the testator or of the witnesses, the date of the will, the procedure set out in Sections 20 to 23 or the capacity of the witnesses.” See Shilo, supra note 8, at 227, 240-244; see also CA 250/70 Sharabi v. Subari [1971] IsrSC 25(1) 429, 432; Miller, J.G., Substantial Compliance and the Execution of Wills, 36 Int'l Comp. L.Q. 559 (1987)CrossRefGoogle Scholar; A.G. Lang, Formality v. Intention—Wills in an Australian Supermarket, 15 Melbourne U. L. Rev. 82, 100 (1985); Langbein, John H., Excusing Harmless Errors in the Execution of Wills: A Report on Australia's Tranquil Revolution in Probate Law, 87 Colum. L. Rev. 1 (1987)CrossRefGoogle Scholar.

17 See Mautner, Menachem, The Decline of Formalism and the Rise of Values in Israeli Law (1993) 54 Google Scholar; Friedmann & Cohn, supra note 8, at 393-394. The requisite of writing in the context of legal commitments to deal in real estate, set by Section 8 of the Law of Property, (1969) S.H. 575 has also become more flexible. See CA 579/83 Zonenshtein v. Gabso Ltd. [1988] IsrSC 42(2) 287. In this context, and analogously to the innovation of Section 25, the significance of the seller's signature on a contract to deal in real estate has also been much reduced. See Mautner, id. at 52; CA 692/86 Botkovsky v. Gat [1989] IsrSC 44(1) 57.

18 In this way one can understand Sali v. Shefer, mentioned in supra note 7. As stated, the document which was alleged to be a will, an instruction sheet signed at the bank, represents a method of expression of the deceased's wishes, a method beyond the limits of the Succession Law, so that the form of expression is not channeled through the Succession Law. Cf. C A (TA) 7201/00 Nakdimon v. Nakdimon [2002] IsrDC (not published).

19 It is interesting to note the parallel between the pattern of increased flexibility regarding probate law's formal requirements and the increased flexibility with regard to the requisite of writing in contracts for the sale of real estate. In the latter, too, the courts have gradually reduced the scope of the essential details that must be included in the requisite written document. See, e.g., CA 235/75 Kadari v. Nurses Order [1976] IsrSC 34(1) 800. Case law has also recognized the option of filling in contractual details on the basis of external evidence. See CA 774/75 Ovadia v. Adrabi [1976] IsrSC 30(3) 533.

However, the similarity between Section 25 of the Succession Law and the requisite of writing in a contract for the sale of real estate does not end at the increased flexibility of the formal requirements; it gains significance in light of two additional important facts. First, the constitutive-formal requisite of writing has not been fully cancelled as far as contracts for the sale of real estate, and has not been reduced to a purely evidentiary role. And second, again paralleling Section 25, where a constitutive requirement has been superseded by an evidentiary requirement, the court has demanded that, where there is no agreement between the parties, unambiguous and conclusive evidence must be produced to prove the substance and meaning of the document. Ovadia, id.; see also CA 686/83 Elisian v. Yahalomi Co. Ltd. [1987] IsrSC 41(4) 160, 165. That is, what is required is something like confirmation beyond any doubt or beyond reasonable doubt, like the requirement which has developed in case law regarding the probation of a will containing one of the flaws listed in Section 25.

20 This burden is so unusual as to be almost unparalleled. Compare, for example, the burden of proof demanded by the Absentee Property Law, (1950) S.H 37, at Sections 37 & 86. This law allows the court to reject a claim to a credit towards an absentee's property if the claim has not been proven beyond any entertainable doubt. Cf. also the Absentee Property Law § 34.

21 See CA 564/71 Adler v. Nesher [1972] IsrSC 26(2) 74; Buskila v. Buskila, supra note 3.

22 See Shilo, supra note 8, at 233; Goodman v. Mousyouf Shem Beit Midrash Gavohah Yeshiva, supra note 6 (opinion of Justice Strasberg-Cohen, at paras. 16-18); CA 6198/95 Jacob v. Barashi [1998] IsrSC 52(2) 603 (opinion of Beinisch); Buskila v. Buskila, supra note 3 (opinion of President Barak).

23 For instance, consider the following example: assume that a testator has left a witnessed will, which lacks her signature. Assume that this is the only will in existence, and that before her death the testator was healthy and independent. Assume further that no substantial claims, supported by evidence, have been raised to the effect that at the time the will was drafted any events occurred which could have affected the testator's free will. Based on this evidentiary background, it would seem, prima facie, that the absence of a signature is of no real significance, and that this flaw, perse, does not cast any real doubts as to the testator's free will. Another example, similar to the facts in Buskila v. Buskila, supra note 3, would be this: assume the situation described above, except that the will is undated. Other external evidence leaves no doubt as to the date on which the will was drafted. If our objective is truly the fulfillment of the testator's wishes, how can we justify the heavy burden placed on the party wishing to probate the will, a burden purportedly greater than that required in criminal law, where the defects in question—the absence of the testator's signature or of the date—are of no material significance?

24 See Dan Cohen, Meir, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1981)CrossRefGoogle Scholar.

25 See FH Aharon v. Aharoni, supra note 8 (opinion of Justice Arbel, at para. 11); see also Langbein, John H., Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 524 (1974)Google Scholar.

26 See Kenig v. Cohen, supra note 3.

27 See the discussion accompanying infra nn. 30-40.

28 Buskila v. Buskila, supra note 3, at 850-851.

29 President Barak, despite expressing support for the approach that Section 25 requires that flawed wills be proven beyond any doubt whatsoever, has noted the problematic aspects of this approach. However, he has failed to reach any practical conclusions on this basis; in Buskila v. Buskila, supra note 3, President Barak noted the paradox created by Section 25. For if a formally valid will is contested, the party wishing to defend the will must prove her case only by a balance of probabilities; if she proves, by this standard, the wishes of the testator, the court will probate the will. Whereas if the will is even negligibly flawed, the party attempting to probate the will must prove that all prerequisites for the execution of a will are met, particularly the testator's free will, beyond any doubt whatsoever. See id at 855-56.

30 See Menashe, Doron, Reflections on the Judgments of Arye Deri, 2 Kiryat Mishpat 329, 364–365 (2002) [in Hebrew]Google Scholar.

31 Compare Wittgenstein, Ludwio, On Certainty § 191 (Ulman-Margalit, Edna trans., Keter Pub., 1986)Google Scholar.

32 Further, case law shows that courts do not tend to disqualify wills on the basis of Section 25. Courts do not attach much weight to minor doubts regarding witnesses' credibility, or to other superficially suspect evidence which would seem to casts doubts over the will's authenticity. Moreover, judges tend to go into great detail, examining the evidence insomuch as it proves credibility and authenticity, before they invalidate flawed wills. Additionally, in many cases in which wills are disproved, judges find it important to show that the doubt regarding authenticity is so substantial, that it is difficult to believe the claims regarding the will's alleged validity. See, e.g., CA 4885/00 Cohen v. Gezuli [2001 ] IsrSC 55(5) 941; Misc. Petition (BS) 1785/93 Sabag v. Saban [September 26, 1995] (unpublished) Estate File (TA) 2130/96 Ravitzky Estate v. Paz [October 22, 2001] (unpublished); Estate File (TA) 11632/99 Ploni v. Almoni [April 25, 2005] (unpublished). This confirms our opinion regarding the impracticality of a standard requiring proof beyond any doubt. This does not mean that in practice the courts do not apply strict scrutiny to flawed wills to determine their validity before probating them, but it does mean that, at least in some cases, this standard in not higher than that of criminal law, or even equal to it.

33 If this more “moderate” approach to the criminal standard of proof does exist, it cannot comply with the classic liberal view that the criminal standard of proof is not only the strictest possible, but also the lowest possible standard that can justify conviction. Cf Scolnikov, Anat, On the Relevance of “Relevance” to the Theory of Legal Fact Finding, 34 Isr. L. Rev. 261, 290–293 (2000)Google Scholar.

34 See, e.g., Dworkin, Ronald, A Matter of Principle (1985) 72–92 Google Scholar.

35 See text accompanying supra 30 (conceptualization of the criminal burden of proof).

36 Indeed, it can be proven that the criminal burden of proof increases the total number of mistakes and that in this sense it strays from the truth. The criminal burden of proof minimizes the total number of mistakes in which innocents are convicted, but it does so at the price of increasing the number of mistakes of the other variety, those in which the guilty are acquitted. The increase in erroneous acquittals is numerically greater than the decrease in erroneous convictions. The rule that minimizes errors all told (of both kinds) is, in fact, the balance of probabilities standard used in civil law. See Kaye, David H., The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation, Am. B. Found. Res. J. 487 (1982)CrossRefGoogle Scholar; Menashe, Doron, The Ideal of the Discovery of Factual Truth and the Principle of Protection against False Convictions—An Anatomy of Complex Relations, 1 Kiryat Hamishpat 307 (2001) [in Hebrew]Google Scholar; Editors' Note, A Probabilistic Analysis of the Doctrine of Mutuality of Collateral Estoppel, 76 Mich. L. Rev. 612 (1978)CrossRefGoogle Scholar.

37 Case law also identifies, to significant extent, the respect for the dead with respect for the words of the dead. Jewish law is referred to in this context: “The words of the dead must be respected.” Babylonian Talmud, Gittin 14b(a), Ketuboth 70a. See C.A. Aharon v. Aharoni, supra note 8, at 479 (opinion of President Barak); see also FH Aharon v. Aharoni, supra note 8 (opinion of Justice Arbel, at paras. 7 & 22 and sources cited therein).

38 Another conceptual line of reasoning supports this conclusion: whereas the occurrence of the first type of error undoubtedly means violation of the testator's wishes, when the second type occurs there is no such certainty, for at least in cases in which there is no other available will (other than the flawed one) it is difficult to tell what the testator's wishes were with regard to the distribution of her property, if indeed she had any such wishes. See the analysis in infra Part III.

39 This will be expanded upon in subsequent parts of this Article, in which I will attempt to show that, to some extent, a higher standard that that required in civil law can be justified, though not on the basis of respect for the deceased's requests.

40 See sources cited in supra note 29.

41 This analysis will be particularly important in assessing the weight of the value of channeling, which is a function of the theory of volition implied by the Succession Law; it will also play a role in determining the parameters that should be taken into account in our disutility equations, which will be presented later on.

42 According to Section 30(b) of the Succession Law, mistakes made by the testator may be addressed in the interpretation of a will, insofar as they relate to the content of the will. See 5 Barak, Aharon, Interpretation in Law: The Interpretation of Wills 354–356 (2001) [in Hebrew]Google Scholar; Shilo, supra note 8, at 276-277. It's true that an error in motivation may be also corrected through the use of section 30(b). See Barak, id. at 356-7; Shilo, supra note 8, at 277-8. This does not affect the theory of volition developed here, as this is actually a variation on the doctrine of an error of fact—an error that stood at the foundation of the testator's motivation, as opposed to an error in the testator's worldview and attitudes.

43 See Shilo, id., at 278-9.

44 It should be emphasized that though these factors are immaterial to the concept of volition, they are certainly likely to be relevant as circumstantial evidence, often of substantial weight, used to prove the volition which we are now exploring. On the distinction drawn between materiality (a quality deriving from the law) and relevance (which typifies a logical relation between evidence and facts), see Montrose, J.L., Basic Concepts of the Law of Evidence, 70 L.Q. Rev. 527 (1954)Google Scholar; Doron Menashe, The Logic of Admissibility of Evidence (forthcoming).

45 Similarly, the theory of volition developed in Israeli contract law addresses not the emotions of people forging a contract but rather their decision to create legal obligations. Furthermore, the theory of volition in contract law is grounded in objective tests involving examination of the document and the circumstances involved, with no necessary recourse to the parties' personal-subjective intentions or to other parameters unbefitting the objective nature of legal obligations. See, e.g., Friedmann & Cohn, supra note 8, at 23-43.

46 Note that we are not dealing with influence per se; the law does not automatically rule out any form of influence. Unlawful influence is only that which goes beyond routine attempts to persuade the testator to exercise her free will in a certain manner: when the final product is dictated to the testator, when relationships in which the testator is dependent on or subordinate to another person are exploited, when unfairness is involved, and so forth—circumstances in which the testator is deprived of her independence and free will. See Shilo, supra note 8, at 269-270; see also Goodman v. Mousyouf Shem Beit Midrash Gavohah Yeshiva, supra note 6, at 448-451. Naturally, a will must be invalidated if it is shown to have been made as the result of intimidation or coercion. See Section 30 of the Succession Law; see also Shilo, supra note 8, at 268.

47 This is the case in contract law, for example. See the doctrine of non est factum, according to which behavior should not be classified as an expression of will if unaccompanied by a deliberate basic cognitive awareness of the act's significance. At the same time, this doctrine certainly does not encompass errors regarding the profitability of a transaction, faulty estimations and assumptions, or personal-subjective inclinations. See Friedmann & Cohn, supra note 8, at 165-166, 682-688; see also C.A. 413/79 Adler Building Co. v. Mantzur [1980] IsrSC 34(4) 29. Cf. also the sphere of criminal evidence laws: the Supreme Court has held that a suspect's confession is only admissible if no means were applied to deprive him of his ability to exercise discretion and to choose between confession and exercising the right to remain silent. This alone is what a free, intentional confession means. See C.A. 115/82 Muadi v. the State of Israel [1983] IsrSC 38(1) 197. We see here that even in a normative environment far from that which is the focus of our discussion, the concept of volition must still be construed in the same way, as chiefly addressing the immediate legal significance of the action or institution contingent upon the actor's wishes.

48 Compare the concept of “decision” in contract law. Friedman & Cohn, supra note 8, at 191, 266.

49 See supra nn. 12-13 and accompanying text.

50 These considerations can be part of the “evidentiary grammar” of wills, but they do not constitute objects to be proven. See text accompanying supra note 41.

51 As opposed to the discussion thus far, which focused on the proper interpretation of the probative standard set by Section 25 in its current form. Broadly speaking, I have so far dealt with the proper judicial interpretation of the section, whereas I turn now to the design of an optimal rule of Section 25's type from the perspective of legislators working within the conceptual and normative framework of the Succession Law.

52 Kaplan, John, Decision Theory and the Fact-finding Process, Stan. L. Rev. 1065 (1968)Google Scholar. Compare Cullison, Allan D., Identification by Probabilities and Trial by Arithmetic (A Lesson for Beginners in How to be Wrong with Greater Precision), 6 Hous. L. Rev. 471 (1969)Google Scholar. Kaplan's model is, at the very least, overly simplistic; it also involves a conspicuous theoretical flaw, in that it fails to consider that standards of proof set in decision rules serve not only as means for the regulation and classification of types of errors, but also as factors affecting the overall number of errors when a certain standard is adopted long-term. Nonetheless, I chose to use Kaplan's model because of its simplicity and because it provides a simple, practical tool for the examination of judicial decision-making strategies in situations such as that posed by Section 25 of the Succession Law.

53 As opposed to errors associated with the reasons for the decision, which are in any case immaterial as far as examining the decision rule to be adopted in Section 25.

54 I will now address only the admission or dismissal of claims that are erroneous inasmuch as they do not reflect the facts—that is, the facts in the extra-judicial world, legally marked as the object of the legal process's investigation.

55 In other words, the degree of disutility due to the erroneous dismissal of a claim is considered commensurate with the degree of disutility resulting from the erroneous admission of a claim. See CA 21/64 Werbichky v. Shingarten [1964] IsrSC 18(3) 95; CA 414/66 Fishbein v. Douglas [1967] IsrSC 21(2) 453; see also Porat, Ariel & Stein, Alex, The Doctrine of Evidentiary Damage: Justifications for Its Adoption and Implementation in Typical Situations of Uncertainty in Causing Damage, 21 T.A. U. L. Rev. 191, 241 n.144 (1998) [in Hebrew]Google Scholar; Menashe, Doron, Preservation of Mutuality as a Condition in the Doctrine of Issue Estoppel, 23 T. A. U. L. Rev. 343, 346–348 (2000) [in Hebrew]Google Scholar; CA 206/89 Raz v. Elisha Hospital Ltd. [1993] IsrSC 47(3) 805, 816-818. Stein and Porat emphasize that the examination of the degree of damage caused by different erroneous decisions is performed through the de-individualization of the facts of any particular case; the plaintiff's dollar and the respondent's dollar are considered to hold equal value. Naturally, this independence of facts stems from the significance of the damage incurred by the error, when the issue at stake is the general, average values, not individual-monetary damage or personal-psychological damage. This is an expression of the State's impartial attitude towards litigants in civil proceedings. See also Stein, Alex, The Refoundation of Evidence Law, Can. J.L. & Juris. 279, 333–8 (1996)Google Scholar.

56 See, e.g., CA 260/82 Salomon v. Emunah [1984] IsrSC 35(4) 253.

57 We can thus distinguish between Seymour's doctrine–“Rather ten guilty persons should escape, than one innocent should suffer” (see Williams, Glanville, The Proof of Guilt 186–7 (3rd ed. 1963)Google Scholar)—and Maimonides' which posits a ratio of a thousand to one: “It is better and more advantageous to acquit a thousand sinners than to put a single innocent man to death.” Maimonides, The Book of Commandments, Negative Commandment 290. According to Kaplan's formula, supra note 52, the gap between the equations will significantly affect the threshold of probability of innocence sufficient for acquittal. While the first formula requires the court to conclude that on an evidentiary basis there is a real likelihood as to the defendant's innocence (around 9.1%), the second formula is in fact a rule compelling (or almost compelling) acquittal, irrespective of the facts of the case, since all that it requires for acquittal is that the court find a 0.1% doubt regarding the defendant's guilt. Such a doubt can almost inevitably be found, if only because the evidence used in criminal cases is not all of the evidence “available” in the world. (Though it should be noted that this last point cannot be dismissed by virtue of the fact that “a judge must take into account only the evidence before him,” Babylonian Talmud, Sanhedrin 82b, since the formulae here deal with the relative truths of decisions “in the world,” not with the conception of a procedural-cognitive framework in which these decisions should be made.)

58 See text accompanying supra note 30.

59 For this interpretation, see, e.g., Cohen, Johnathan L., The Probable and the Provable, 247–52 (1977)CrossRefGoogle Scholar; see also Tribe, Laurence H., Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971)CrossRefGoogle Scholar.

60 Cf. e.g., CA 475/81 Zikri v. Clal Insurance Ltd. [1986] IsrSC 40(1) 589.

61 Kaplan, supra note 52, at 1-72.

62 See Sections 34e. 34v(b) of the Penal Law, 1977, Special Vol. L.S.I. 4 (1977) (Isr.); see also Kedmi, Yaakov, On Evidence—The Law Through the Looking-Glass of Case Law Part 3 (revised version, 2004) [in Hebrew]Google Scholar.

63 In these special cases, we use ΔD1 instead of D1, and ΔD2instead of D2. That is, we consider the different levels of disutility caused by specific types of erroneous decisions (admitting or dismissing a claim or argument) and correct decisions of the same type.

64 Another illustration of this type of situation can be found in case law that rejects the use of DNA tests to determine paternity where the tests' results might lead to a minor being declared illegitimate according to Jewish law. See CA 1354/92 Attorney General v. Plonit [1994] IsrSC 45(1) 711, 744-50. See also CA 5942/92 Ploni v. Almoni [1994] IsrSC 45(3) 837,8431; CA 548/78 Sharon v. Levy [1980] IsrSC 35(1) 736, 748-749. The reasoning here is that the potential damage to the minor's personal status is so severe that it must be avoided even if it is to accompany a truthful decision determining his illegitimacy as the result of a married woman's adultery. Kaplan's equation would be applied through the examination of the following hypothetical question: Let us assume that the minor was bom as the result of adultery on the part of the woman. Is the degree of social disutility entailed by his being declared illegitimate greater than the degree of social/legal disutility resulting from the decision holding that he should not be declared illegitimate? Since it seems that the degree of injury in the latter decision is the lesser evil in the Supreme Court's view (and because this preference would obviously not change under the hypothetical assumption that the minor was not born as the result of adultery), it seems that the Court must refrain from declaring the minor's illegitimacy, in any event, regardless of any evidence presented regarding paternity and the probability that the claim of illegitimacy is true.

65 That is, an evenhanded rule regarding the validation of a flawed will vs. a sound will if there is only some probability above 0.5 that the flawed will is the will which reflects the testator's wishes.

66 See the discussion in Kaye, supra note 36.

67 See also Part VI infra: Heretical Reflections on the Objective of Inheritance Law.

68 This is because it is reasonable to assume that the best explanation for the deceased's failure to draft a will is often not her full, conscious adoption of the legal arrangement of intestacy as her essential intention and preferred method for the distribution of her property after her death. Rather, it may be assumed that her failure to make a will often reflects the testator's rejection of or disregard for the legal idea of the will and the institutions channeling this institution. See the discussion later on.

69 The value L is found only in these cases–see the definition of L supra.

70 Matters may be even more serious: sometimes a flawed will—though it does not reflect a full decision and is therefore “false”—is still preferable to inheritance by law. Furthermore, even if a testator's failure to make a lawful will is a conscious decision, it can be construed as lack of interest on her part in the fate of her property after she dies (and this interpretation may be more reasonable than the somewhat fictitious idea that the testator decided to adopt intestate inheritance law). Therefore, inheritance by law is no better than a succession by flawed will as far as fulfilling the deceased's wishes, and the probability required should be 0.5.

71 A notable advantage of this proposed decision method is that it can be used in the case of several flawed wills. The case of only two wills was used here simply for convenience and because in practice it is far more common than any other number of flawed wills.

72 In this case, it is obviously desirable that the judge avoid this problematic result by making an effort to find a probability preference (even by a hair's breadth) for one of the wills, so that it may be validated.

73 It is true, however, that one might accept this general framework for how decision rules should be formed, yet still challenge the conclusion reached here—that is, challenge the specific decision rules suggested.

74 See sources cited in supra note 36.

75 Allen, Ronald. J., A Reconceptualization of Civil Trials, 66 B.U. L. Rev. 401 (1986)Google Scholar; Allen, Ronald J., The Nature of Juridical Proof, 13 Cardozol. Rev. 373 (1991)Google Scholar.

76 See Posner, Richard A., An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1484 (1999)CrossRefGoogle Scholar; Shapira, Ron A., Economic Analysis of Evidence: A Caveat, 19 Cardozo L. Rev. 1607, 1616–18 (1997–1998)Google Scholar.

77 Langbein, supra note 25, at 534; see also text accompanying supra note 26, in which I note that juridical interpretive policy that disregards formal requirements altogether might cause some harm, after all, to meticulous adherence to these requirements. When what is involved is not disregard for these requirements but rather the desire for flexibility in problematic situations, as this paper suggests, the harm caused would not be significant. See also sources cited in supra note 75.

78 See also FH Aharon v. Aharoni, supra note 8 (opinion of Justice Arbel, at para. 11); Kenig v. Cohen, supra note 3, at 719.

79 That is, the design and interpretation of the section focused chiefly on archetypical situation #2, as defined above. In a sense, situation #2 is indeed the paradigmatic situation handled by the section, because it deals with the allocation of the relative weight of the two basic types of inheritance—by will and by law.

80 Regarding the incidence of the use of wills, see Shilo, supra note 8, at 115 (noting that most succession cases are actually intestate). See also Rosen-Zvi, Ariel & Maoz, Asher, Principles of Intestate Succession in Israeli Law, 22 Isr. L. Rev. 287, 346 (1988)Google Scholar.

81 There is some support for this view. Shilo, for example, writes that the goal of intestate succession is to reflect the average person's wishes, so that the wishes of the deceased in a particular case can be matched as closely as possible. See Shilo, supra note 8, at 29-30. Justice Arbel concurs with view in her opinion in FH Aharon v. Aharoni, supra note 8, at 70. See also Rosen-Zvi & Maoz, supra note 80 at 345-346 (maintaining that the distribution must reflect the “broadest common denominator of the preferences of individuals in a community”). See also Committee on the Laws of Intestate Succession, Cmnd. No. 8310 (1957) 3-7; Tedeschi, Gad, On Dispositive Law, 15 T. A. U. L. Rev. 5, 19 (1990) [in Hebrew]Google Scholar; Mellows, Anthony R., The Law of Succession 217 (1993)Google Scholar; Mann, Bruce H., Formalities and Formalism in the Uniform Probate Code, U. PA. L. Rev. 142, 1033, 1051 n.71 (1994)Google Scholar (surveying studies that appear to support the claim that testators tend to bequeath primarily to first-degree relatives).

82 It is regrettable that modern man finds it so hard to accept the simple, accurate message of Jewish sources in this context. In the Ethics of the Fathers we read:

Everything is placed in pledge, and a net is spread over all the living. The store is open, the storekeeper extends credit, the account-book lies open, the hand writes, and all who wish to borrow may come and borrow. The collection-officers make their rounds every day and exact payment from man, with his knowledge and without his knowledge. Their case is well founded, the judgment is a judgment of truth, and ultimately, all is prepared for the feast.

Mishnah, Avot 3:16. In Psalms 90:10, King David wrote: “The days of our years are threescore years and ten; and if by reason of strength they be fourscore years, yet is their strength labour and sorrow; for it is soon cut off, and we fly away.”

83 Paradoxically, although this perspective itself is not rational per se, it may serve as a self-fulfilling prophecy. See, e.g., Murphy, Joseph, The Power of the Subconscious Mind 59–60 (Kahanov, Gad trans., Or-Am, 1990)Google Scholar.

84 Moreover, the fact that the term “defect” is not treated as part of the context of the objective of fulfilling the wishes of the deceased, but rather is dealt with in a highly formal sense, relating to the question “what is a will?” attests to the facts that the definitive purpose is not really the realization of the testator's wishes. Prior to the most recent amendment to Section 25, case law created a distinction between dynamic and static elements, based not the “axis” of the testator's wishes but on formal-linguistic assumptions regarding the nature of the document as a will, the mandatory and sufficient conditions for making a will as a formal-linguistic institution. The latest amendment only decided between differing opinions in the case law and listed those basic elements without which the document in question cannot constitute a will; but it did not define an alternative criterion for the distinction between the different elements. See the cases cited in supra note 4; and also in Estate File (TA) 11632/00 Ploni v. the Weizmann Institute of Science [2004] IsrDC (opinion of Justice S. Shohat).

85 CA 1099/90 Sharoni v. Sharoni [1994] IsrSC 47(4) 785.

86 Shilo points out that Israeli law is distinct in that it uses the termyerusha al pi din (inheritance by law) rather than the English term “intestate succession.” See Shilo, supra note 8, at 29.

87 See, e.g., Shapir v. Klivansky, supra note 4; see also CA 2622/90 Shani v. Lermer [1993] IsrSC 47(1)191.

88 See FH Aharon v. Aharoni, supra note 8 (opinion of Justice Arbel, at para. 14).

89 Id.

90 Here, as President Barak remarked in CA Aharon v. Aharoni, supra note 8, at 477: “As far as a declaration of revocation is concerned, the fundamental demands of the means of revocation must be upheld, while formalities need not be strictly examined, as long as the court is convinced of the testator's decision to declare the will cancelled”; and also: “We must not be as strict regarding declarations of revocation as we are regarding wills per se.” Id.

91 Id.

92 See FH Aharon v. Aharoni, supra note 8 (opinion of Justice Matza, at para. 13).

93 Id. (opinion of Justice Arbel, at para. 17).

94 Note her explicit remarks in id.

95 Compare Dworkin's analysis of the concept “Hypothetical Counterfactual Consent.” Dworkin, Ronald, Why Efficiency? A Response to Professors Calabresi and Posner, 8 Hofstra L. Rev. 563, 578 (1980)Google Scholar.

96 See FH Aharon v. Aharoni, supra note 8 (opinion of Justice Arbel, at para. 7): “Honoring the wishes of the deceased to decide what should be done with her property is part of her human dignity.” See also BARAK, supra note 42, at 59-146; CA 4660/94 Attorney General v. Lishitzky [1999] IsrSC 45(1) 88, 115.

97 An exception to this rule would be a case in which the failure to make a will is a kind of communicative act (by way of omission) expressing the testator's wish to adopt all aspects of inheritance law. This scenario is quite uncommon, and its uncommonness is augmented due to the fact that it is most likely that in these situations, testators will in any case take care to make a will that fully corresponds to the Succession Law.

98 See Section 28 of the Succession Law, titled “Will as personal act”: “A will cannot be made otherwise than by the testator himself.”

99 An approach that grants preference to inheritance by law is taken by Jewish law. See, e.g., Shulhan Aruch, Hoshen Mishpat 246:5 & 351:2. Note, however, that in Jewish law wills have no validity whatsoever, though a gift may be given inter vivos. The preferred status of inheritance by law in Jewish law is evident in the words of Maimonides:

A man may not bequeath to anyone who is not fit to inherit him; nor may he withhold an inheritance from he who is entitled to inherit, even though this is a monetary matter; for it is stated in the Torah portion discussing estates: “and it shall be unto the children of Israel a statute of judgment.” That is, this body of law does not change and cannot be overridden.

Maimonides, Mishneh Torah, Laws of Estates 6:1.