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32 The US-Israel Legal Review 2019
ISRAEL: TRUSTS AND ESTATES
donor’s demise, is also null and void, unless such
gift was included within a valid will.”
Justice Cheshin stressed the importance of the
freedom of testation in the Lishitzky
15
case:
If there is a foundation principle, if you will, a super-
principle, in inheritance law, there is none but the
principle that instruct us that a person, any person,
is at liberty to bequeath his estate, and the principle
that derives from it, whereby the living are obliged
to keep the deceased’s wishes. The freedom of
testation and the obligation to keep the deceased’s
wishes – two sides of the same coin – the two as one
derive from the human dignity, and the personal
autonomy derived from the dignity.
Maintenance out of the estate
An exemption to the principle of the freedom of
testation is the right to receive maintenance out
of the estate.
16
Section 56 of the Succession Law
provides that where the deceased left a spouse,
children or parents that are in need of maintenance,
shall be entitled to such maintenance, regardless
whether the deceased has made a valid will.
Moreover, section 63 of the Succession Law
provides a “claw-back” rule and determines that in
the event that the estate is insufficient to provide
maintenance to all that are entitled to it, the court
is authorized to view transfers of assets carried out
without proper consideration during the two years
period prior to the death of the deceased as part of
the estate, except for gifts and donations made in as
customary under the circumstances.
Section 57 defines the scope of the right for
maintenance out of the estate, and inter alia
provides that a child under 18 years of age of the
deceased, who is handicapped, or mentally ill, or
cognitively disabled is entitled to maintenance.
Chief Justice Shamgar in the case of Levitt
17
clarified that it is insufficient to belong to the class of
persons that are entitled to maintenance out of the
estate, and that a “need of maintenance” should also
be established, and where such need is not properly
established, the testator may bequeath his entire
estate to another. Chief Justice Shamgar continued
and held that such need exists only when the
applicant for maintenance cannot properly satisfy
his basic needs. According to Shamgar, the wishes
of the testator should be enforced only to a certain
extent. The limit lies where a first degree relative of
the testator becomes an unreasonable burden on the
society. The maintenance out of the estate manifests
the notion that the existence of a family relationship
justifies imposing an obligation of maintenance, in
specific instances, upon the estate.
Inheritance procedure in Israel
Under the Succession Law, the rights of the heirs
in the estate are created only upon the issuance of
order with respect to the estate by the competent
authority. In circumstances where the deceased left
a will, an application should be made for a probate
order, and only upon the issuance of the order the
will becomes valid and enforceable. It should also
be noted that only a probate order issued in Israel
in accordance with the Succession Law is regarded
as valid, and probate orders issued by foreign
authorities are invalid.
18
However, in circumstances
where the deceased left a will relating to only a part
of his or her estate, or the deceased did not leave
a will at all, an application should be made for an
inheritance order.
19
Both an application for a probate order and an
application for an Inheritance order are made to
the Registrar of Inheritance, and it is authorized
to declare the rights of the heirs accordingly.
20
However, is the circumstances described in
section 67A of the Succession Law, the Registrar
of Inheritance must forward the application to
the Family Court. Such circumstances arise, for
example, when the application is contested, when
the will is defected, or when the Administrator
General represents in the application minor. The
Family Court is authorized accordingly to issue the
relevant order.
21
Only a probate order issued
in Israel in accordance with
the Succession Law is valid.
Probate orders issued by foreign
authorities are invalid.