When There Is A Legal Will, There Might not be a Halachic Will

It is apparent in the parshiyot of Bereishit that although the Patriarchs were concerned with many matters, one thing, above all, was crucial. They were determined to pass down to future generations the Bircas Avraham – the blessing that Hashem gave to Avraham Avinu – that of a special relationship between the Almighty and the Jewish People, and between the Jewish People and Eretz Yisrael. This desire is considered a crowning achievement of Avraham:

For I [Hashem] have known him [Avraham] because he will instruct his 

children and his household after him, that they should keep the way of Hashem 

to perform righteousness and justice, so that Hashem will bring upon Avraham 

that which He spoke concerning him. [Bereishis 18:19]

This desire – to pass down our legacy to our children – is something that we think about more and more as we get older, which we certainly ought to. In our society, the main legal vehicle for formalizing the way that legacy is passed down is generally by writing a will. There are three main types of wills that every person should have, in order to ensure that their intent and desire is carried out by their children and heirs. These three types are:

• Ethical Wills – a document in which one communicates their hopes and dreams for the next generation. This is the type of will that the Patriarchs implicitly provided for their children.
• Living Wills – These are documents in which instructions are laid out for decisions regarding health care should a person be incapacitated from making those decisions themselves.
• Regular Wills – a document that provides instructions for how one's estate and personal effects are to be distributed after their life ends.
  (In the case that there are minor children involved, it is also very important in that a legal guardian can be appointed and methods can be put in place for providing for one's children should the parents G-d forbid die while the children are still minors.)

Each of these areas should have an article unto themselves to describe even the most basic fundamentals. In this essay I would like to deal with regular wills, and to emphasize the importance of dealing with the Halachic requirements of a will which many people are not aware of. I hope to get to the other types of wills in a subsequent essay.

A will is a document in which a testator (person wishing to give instructions as to the disposition of their assets) executes a written record of all of his/her wishes, which is signed with appropriate legal formalities, and then set aside in a safe place until the end of the testator's life. The will has no legal significance until the testator's death, after which it springs into irrevocable legal effect, which can not be changed. And this is the source of a very great Halachic problem.

The problem we shall describe is only one of several Halachic problems. Among the most significant problems are the following:

According to the testamentary system set out in the Written Torah, there is no such thing as a will. The Torah sets out a system whereby a Man (who is the sole owner of his and his wife's possessions with few exceptions) is inherited by his sons (not his daughters unless there are no sons), and if the sons are not available, then successively by various paternal relatives. The wife's inheritance is limited to the value of her Ketubah (generally understood to mean somewhere in the realm of $25,000 -$50,000). The sons do not receive equal shares; the Bechor – first-born son – receives a double portion.

Furthermore, there are considerations of how the testator's debts are to be paid, what bequests might be made for other persons and/or charitable causes, and what arrangements are to be made for minor children. The basic Halachic default provisions are generally not consistent with the way that most people today, including Orthodox Jews, wish their estate to be divided. Unless another Halachically legitimate way can be found to effect those wishes, one would be in Halachic violation if they do not follow these guidelines.

Of course, this is not a new problem, and various forms of a Halachic will, or “Tzava'ah”, have been proposed by Poskim throughout the centuries. Nevertheless, of course, people wish to have not only a tazva'ah enforcable in Bet Din, but a legally effective will that can be entered into Probate Court. And here is where the largest Halachic problem lies.

The problem is this. Under the laws of New York State (and every other state) a will is a worthless piece of paper, completely lacking in legal effectiveness, until the moment of death. The testator is completely free to change it, invalidate it, discard it as he/she sees fit. In fact that it why wills always begin with the claim of being the “last will and testament”; it is a simple way to invalidate any prior will, which is automatically invalidated by the writing of a later one. (One should still get competent legal help to make sure that the previous one is indeed invalidated). The point I am stressing is that the will takes effect only after death, not a moment before.

Under Halacha, however, one loses all rights to one's property upon death; all property that has not been given or sold before death automatically passes to the heirs according to the Torah scheme of inheritance, with no right of the deceased to direct any bequests whatsoever.

In other words, according to Halacha, bequests can only 

be made to take effect BEFORE death, 
while the testator is alive; after he/she dies there remains nothing for the testator to give. 

 By contrast, under NY (or any other state) law, bequests only be made AFTER death.  
The testamentary intent as expressed in the will has absolutely no effect and can be changed anytime inter vivos
(while the testator is still alive)

Thus a person who relies only on a will that is valid under NY law is in effect setting up a terrible situation for his/her heirs. For example, if a man dies and provides in his will that he wishes his property to go 50% to his wife, and the other 50% to be divided equally between his three sons and one daughter, and does nothing to make this halachically valid, he will be setting up a situation whereby the heirs will be engaged in theft if they follow this plan. Under Halacha, the wife is entitled only to the Ketubah, ans the estate is to be divided in four parts, with the eldest son getting two parts, the other two sons getting 25% each, and the daughter nothing. (If the daughter is a minor, her brothers would have a responsibility to provide for her basic care from their inheritance.) If the wife or daughter take under the will, or if the two younger brothers take more than their 25% share, they will be guilty of genevah, assuming that the deprived do not waive their rights.

It is thus crucial that when setting up a will there be a consultation with a Rabbi and/or attorney who is knowledgeable in Torah to make sure that it will be valid both in the Bais Din as well as the Probate Court. This expert can help advise about what should go into a properly executed will and Tzava'ah, as well as being knowledgeable about other forms of expressing testamentary intent, such as the many different kinds of trusts which may be more appropriate than a will for a particular individual.

I would be very happy to discuss these matters further with anyone who has an interest in making sure that they are providing for their heirs in a most beautiful way, both materially and spiritually .

Note:  This essay does not constitute legal advice.  In some jurisdictions it might be construed as a legal advertisement