WHEN THERE’S A WILL WE WILL SHOW YOU THE WAY
True story. A man walked into our office one day. The youngest of seven children and a successful businessman in his own right, he was concerned about the prospects of upcoming litigation. His oldest brother, the firstborn son of his parents, was planning to institute a claim against him and his other siblings for his ‘Halachic’ double-share of his father’s multi-jurisdictional estate. This was despite their father clearly stipulating to his children that they would all inherit his estate equally.
On another occasion, our firm had to proceed against a widow for refusing to assist an executor in carrying out his duties which included paying a very large part of the deceased estate to numerous reputable charitable causes. Her argument was that she felt that she deserved much more than provided for in her spouse’s will and should be a preferred heir. After numerous court proceedings, the surviving spouse acquiesced and all the charities were paid out.
Difficult scenarios keep presenting themselves, for example, when a woman – whom we placed under curatorship through the High Court due to her inability to manage her financial affairs – attempted to write a new will and disinherit heirs.
No one likes to think about planning for the distribution of their property after death. For an Orthodox Jew, complications can arise yet further, due to the fact that Halacha (Jewish law) and secular law differ significantly when it comes to dividing an estate. For example, according to Halacha, an heir inherits from his or her benefactor one second before the death of the benefactor, whereas according to secular law, an inheritance only vests in the heir after the death of the benefactor.
The conflict that would arise here could be significant. If one were to assert the Halachic position, the heir gains the inheritance just before the death of the benefactor. The secular law would view it as a donation (and not an inheritance) as it took place while the benefactor was still alive (albeit one second prior to death). As far as tax laws are concerned, a Halachic “inheritance” may be deemed a donation and taxed as such – currently at a much higher rate than an inheritance! A substantial tax rebate could also be forfeited unnecessarily due to incorrect estate planning. Clearly, without proper planning, a large share of one’s wealth may be lost to taxation, distributed in a manner that does not accord with either one’s values or expectations, and which could cause tremendous tension among family members. In order to avoid these pitfalls, one’s “Last Will and Testament” needs to be prepared by a professional who will take into account Halachic requirements (thereby following Jewish Law), while at the same
time giving careful consideration to the local secular laws that would apply.
THE HALACHIC WILL AND ITS INTERPRETATION BY SECULAR COURTS
If the legal heirs retain assets that are distributed in accordance with secular law, they may, in some instances, be depriving the true Halachic heirs their share of the inheritance and invariably, this may lead to litigation in secular courts as well as in a Beth Din/Din Torah forum.
It is important to note that a Halachic Will, in most situations, will not be enforceable by a secular court as it may very well be viewed as a donation and not a will, as explained above. Conversely a secular Will, may under certain circumstances not be enforceable in a Beth Din if a person’s Halachic heirs oppose it and claim the right to inherit according to the Torah’s Order of Succession.
There are also important Halachic principles which govern how and to whom a person should distribute his assets. Halachic Estate Planning is not simply to ensure that one’s instructions would be followed, but also to create an Estate Plan that will provide for one’s family in a manner consistent with Torah Law, taking into account various aspects of the laws of kinyan – Halachic methods of acquisition.
It is therefore prudent to address these issues and to structure one’s Estate Plan in a manner which accords with one’s wishes and complies with the various laws of the land, and of course, Halacha.
ORDER OF INHERITANCE PRESCRIBED BY TORAH LAW
It is forbidden to circumvent the order of Halachic Inheritance. The Torah defines the order of inheritance and teaches us the proper distribution of an estate. This order is not only for those who neglect to execute a Will – but rather, reflects the Torah’s view of how an estate should be divided, focusing primarily on immediate family members. Therefore executing a Will that overrides this order by disinheriting an Halachic heir is prohibited. A Will that violates the Halachic Order of Inheritance would nevertheless be legally valid.
Some opinions rule that not even an executor may unilaterally distribute money to charity unless it was the clear intention of the deceased to do so. Rather, he must distribute the assets to the Halachic heirs in accordance with the Halachic Order of Inheritance.
MODIFYING THE TORAH’S ORDER OF INHERITANCE
With regard to modifying the Order of Inheritance but not completely disinheriting any of the Torah heirs, many Halachic authorities are of the opinion that one may distribute his assets as he wishes provided that he leaves a “meaningful portion of his estate” to be divided in accordance with the Order of Inheritance.
Many Halachic authorities hold that one could allocate a significant amount of money (even if it is but a small percentage of the entire estate) to be divided up according to the Torah Order of Inheritance and the rest of the estate to be divided equally. (Tashbetz §147 as well as Reb Moshe Feinstein)
With regard to daughters, it has become a widespread custom to give each daughter an equal share of the estate, even though historically daughters received half of the amount which a son would receive, or even less in situations where a responsibility for their sisters maintenance rested with the sons.
An acceptable motivation and a legitimate reason to modify the Halachic Order of Inheritance, is for the purpose of treating daughters equally and ensuring peace and harmony among family members. (Rav Henken 2:100 as well as Cheshev Haephod 3:50). See also R’ Ari Marburg’s discussion on this topic.
The above would therefore also apply to other relatives who would not under normal circumstances inherit according to the Halacha.
A secular Will can be executed in accordance with the Halachic Order of Inheritance. It is important to take account of Halacha which requires a formal act of acquisition, and numerous approaches have been suggested to achieve this. However that discussion goes beyond the scope of this article.
Eli Karp is an attorney and partner at Cranko Karp and Associates