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The Succession Law, 1965: A Lustrum

Published online by Cambridge University Press:  12 February 2016

Peter Elman
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Type
Legislation
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Israel Law Review , Volume 7 , Issue 2 , April 1972 , pp. 286 - 301
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1972

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References

1 The Law was officially published on February 10, 1965 but under sec. 161 came into effect 9 months later.

2 See generally Yadin, U., “The Law of Succession and other Steps towards a Civil Code” in Studies in Israel Legislative Problems (ed. Tedeschi, G. and Yadin, U.) XVI Scripta Hierosolymitana (Jerusalem, 1966) 104Google Scholar; see also id., “Reflections on a new Law of Succession” (1966) 1 Is.L.R. 132.

3 As to the centrality of art. 46 in large areas of local law, see Ginossar, S., “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380, 383.Google Scholar

4 Kister J. has also pointed out in Sharavi v. Sobri (1971) (I) 25 P.D. 429, 432, that sec. 25 (probate of will despite formal defects regarding the signature of the testator or witnesses, the date etc.) is a modified version of a rule of Jewish law, the like of which is not found in any other modern legal system.

5 Yadin, “The Law of Succession and other Steps Towards a Civil Code”, supra n. 2.

6 The data are taken from the annual Statistical Abstract of Israel and the Judicial Statistics published by the Central Bureau of Statistics. Owing to changes in the data presented, it is not always possible to make pertinent comparisons or draw significant conclusions. Thus, until the Law of 1965, the different religious courts had explicit jurisdiction in succession matters affecting their respective members, with only residuary jurisdiction in the District Court; now under sees. 151 and 155 primary jurisdiction resides in the District Court and only peripherally, where all the interested parties consent, in the religious courts. This change is reflected in the statistical data; figures as to succession cases heard by the religious courts are no longer shown separately, a gross figure alone being given. Again under the new Law three forms of court applications are clearly marked out—probate, succession order and administration order—and the statistics follow this tripartite division. It was otherwise for the period before 1965. More detailed information might or might not confirm one conclusion drawn in the text below from the very considerable increase in the number of succession order cases since 1966.

7 This gives an average annual percentage for civil cases generally of about 5.3% and for succession cases of about 11% for the five years 1966–1970.

8 Sec. 76, and cf. sec. 70(b) which provides that such appointment shall be stated in the succession or probate order, as the case may be. In the latter the executor named in the will is normally to be appointed under sec. 81.

9 Detailed figures are not yet available for 1970.

10 It should be pointed out that the figures for probate and administration order cases respectively fluctuate more than those for succession order cases which show a “steady” increase. The conclusion that the rise in the latter far outstrips that for the first two types of cases is not affected.

11 In 1966 the percentage was over 77% and in 1969 just over 84%, in contrast to probate cases, 17% and over 12%, and to administration order cases, just over 4% and just over 3% respectively. These figures also indicate or may indicate, first, that will-making is not very widespread—over the years 1966–1969 the abso lute figures are more or less constant—and secondly that administration orders are relatively negligible—the absolute figures are also more or less constant. The significance of this phenomenon requires investigation.

12 Only one or two cases appear in the reports of both the District Court and the Supreme Court, but these have not been counted twice.

13 Some of them simply turn on the construction of the wills concerned, see for example, Lederman v. Kronbein (1968) (II) 20 P.D. 955, and although raising interesting points, will not be considered here. Nor will reference be made to conflict of laws cases, see for example, Hanzalis v. Greek Orthodox Patriarchate Religious Court (1969) (I) 23 P.D. 260 (cf. (1970 5 Is.L.R. 120) and Mattar v. Mattar (1969) 66 P.M. 105, in which it is inevitable that foreign law should be cited and sometimes followed.

14 Speaking very generally, one gains the impression that effective foreign citation is growing less and less in all areas of law to the extent that a body of local precedent is building up.

15 (1970 (I) 24 P.D. 657, 660.

16 The reverse occurred in The Estate of M.N. Meshiah (1966) (I) 20 P.D. 126, where in a dispute over an apartment between heirs, one of whom was in occupation and the other wished to sell with vacant possession, Halevi J. cited sec. 115 to support his interpretation of the Tenant Protection Law.

17 (1970) 71 P.M. 335.

18 (1970) 69 P.M. 52.

19 The Court might have found further support from a different angle. Sec. 31 provides inter alia that where one year has elapsed since the exercise of duress, threats, undue influence or trickery (all reasons for avoiding a testamentary disposition under sec. 30) have ceased to affect a testator and, though able to do so, he has not revoked the disposition, it shall no longer be void. Here, the notion of implied confirmation is operative, whilst revocation must obviously be express in accordance with sec. 36.

20 (1970) 71 P.M. 171.

21 By making a new will or by destroying an existing will.

22 (1970) (II) 24 P.D. 93.

23 The Hebrew for “a provision in a will” is the same as that which is elsewhere translated as “a testamentary disposition”. That is defined in sec. 37 as meaning in the present context the whole will, a part thereof or any of its stipulations.

24 Obiter, Kister J. also indicated, again restrictively, that the rule would only operate against a direct benefit and not an indirect one as where an heir to whom the section applies gains a larger benefit under the will attacked than he would under the previous will which has been revoked.

25 (1970) (II) 24 P.D. 105.

26 (1970) 69 P.M. 173.

27 “A will made before the commencement of this Law by a testator who died after its commencement … is valid as regards form and content, if it was valid immediately before the commencement of this Law or under this Law (sec. 157).

28 (1968) (II) 22 P.D. 138.

29 See supra, n. 19.

30 In the reverse, the Succession Law has been cited to help in a decision under the Succession Ordinance, although unlike here the provision of the Law called in aid embodies an approach wholly different in theory from that of the Ordinance: Roth v. Breuer (1966) (III) 20 P.D. 85, 93, per Halevi J.

31 The pattern of Sotizki (in contrasting sec. 12 of the repealed Succession Ordinance which also speaks of infirmity of mind with a provision of the Law estab lishing where the burden of proof lies) was followed in the District Court in Eisen v. Barzilai (1969) 64 P.M. 350, on the question of avoiding a will under sec. 26 by reason of the testator being unable to understand the nature thereof.

32 (1970) 68 P.M. 313.

33 (1970) (II) 24 P.D. 720.

34 Haviv v. Kardosh (1966) 52 P.M. 213 and Perez v. Helmut (1966) (IV) 20 P.D. 337.

35 Monsongo v. Harnandornah (1968) 59 P.M. 159; Dorsinover v. Mivtalim (1970) 67 P.M. 70; Harris v. Juster (1970) (I) 24 P.D. 617. In the last case Berinson J. went into an exhaustive clarification of each element of the definition.

36 In the Estate of Masoud Abu (1967) 58 P.M. 128; In the Estate of M.Z. Finkelstein (1968) (I) 22 P.D. 618; Pahima v. Pahima (1969) 64 P.M. 94. The second of these cases was decided by a five-man bench of the Supreme Court and the extremely careful judgment of Silberg D.P. is likely to be the leading judgment in this area.

37 (1971) (I) 25 P.D. 488, 492, 493.

38 The court indeed could also have relied upon sec. 25 and/or sec. 32 as was done by the District Court in Re Bulstein (1970) 67 P.M. 143 (also a death bed oral will case). These sections deal respectively with the grant of probate of a will which has formal defects (including those in the procedure to be followed under sec. 23) and the rectification of clerical errors. In both, the overriding principle is essentially the same—“where the court has no doubt as to the genuineness of a will” or “it is possible to determine clearly the true intention of the testator”.

39 (1966) (I) 20 P.D. 113.

40 That is not so under sec. 36(a) of the Succession Law: “A testator who has destroyed the will is thereby presumed to have intended to revoke it”.

41 No official report of this case has, at the time of writing, appeared. The facts are taken from a report in the Jerusalem Post of June 30, 1971.

42 (1970) (I) 24 P.D. 152.

43 Does sec. 45 also apply to a gift to a legatee who in view of sec. 40 may be defined as one who receives an asset in contrast to a proportionate part of an estate? Sec. 2 states that “the heirs are those who succeed on intestacy or under a will”, and in Mivtahim v. Fichman (see infra n. 44) it was held that “heir” included a person taking the benefit of insurance monies payable on death.

44 (1966) (II) 20 P.D. 512. See also Mivtahim Workers Social Security Institution v. Fichman (1967) 56 P.M. 375 (meaning of “heir” in the plaintiff's rules); Bohan Insurance Co. Ltd. v. Rosenzweig (1968) (I) 22 P.D. 569 (the various ways in which a transaction can be affected); see also Apelbom, , “The Requirement of Writing in Contracts of Insurance” (1971) 6 Is.L.R. 112.Google ScholarNirenberg v. Nirenberg (1971) (I) 25 P.D. 185 (miri land).

45 Cf. Paton, G.W., A Textbook of Jurisprudence (3rd. ed.) 221 ff.Google Scholar: Salmond, on Jurisprudence (12th. ed.) 130–31.Google Scholar