Wills and inheritance in Israel: what the law provides, what a will can change, and what makes it valid
Where there is no will, the Succession Law decides who inherits and in what shares. A will is the only way to depart from that scheme, but only if it was made in one of the four forms the statute recognises and is free of a defect that voids it.
"Most of the disputes we see are not about what the will says. They are about how it was made, who was in the room, and what was left out of it altogether."
Adv. and Notary Igal Mor · Estate planning and wills
Two routes: statute and will
In Israel there are only two ways in which property passes on death: inheritance under the statute, and inheritance under a will. The Succession Law of 1965 governs both. In the absence of a valid will the statutory scheme applies, regardless of any wish the deceased expressed orally or in a document that is not a will.
The difference between the routes is not only who inherits:
- Statutory inheritance divides the estate according to a fixed order, in fixed shares, without regard to the circumstances of the particular family.
- Inheritance under a will allows the testator to decide who receives what, to impose conditions, to appoint an estate administrator, and to address situations the statutory scheme does not recognise at all.
A will overrides the statutory scheme in everything it addresses. Whatever it leaves unaddressed continues to be governed by the statute. A partial will is therefore not a problem: it simply leaves the balance to the rules of statutory inheritance.
Who inherits with no will
The statutory heirs are the spouse and the deceased's relatives: children and their descendants, parents and their descendants, and grandparents and their descendants. The division works in three circles, a nearer circle excluding a more distant one.
The spouse's share is fixed by section 11 of the statute and depends on who else survives:
- The spouse takes the household chattels, including a passenger car.
- Alongside children or their descendants, or alongside the deceased's parents: the spouse takes half of the remainder of the estate.
- Alongside siblings or their descendants, or alongside grandparents: the spouse takes two thirds. If the spouse had been married to the deceased for at least three years and lived with them in an apartment forming part of the estate, the spouse also takes the whole of that apartment.
- Where none of these survive: the spouse takes everything.
Recognised cohabiting partners do not inherit as married spouses, but section 55 provides that where a man and a woman lived a family life in a joint household and neither was married to another, they are regarded as having left their estate to one another. That provision is applied after the fact and on conditions, so it is no substitute for a will. See common-law partners.
The four forms of a will
The statute recognises four forms and no others. A document that does not answer one of them is not a will, however clear its intention.
- Holographic will. Written entirely in the testator's own hand, bearing a date in their hand and signed by them. No witnesses are needed. The common defect here is a printed portion, or a date not in the testator's hand.
- Will before witnesses. In writing, dated, signed by the testator before two witnesses after declaring to them that it is their will, with the witnesses attesting that by their signature on the will.
- Will before an authority. Made orally or submitted in writing before a judge, a Registrar of Inheritance Affairs, a member of a religious court, or a notary. This is the best-documented form, and therefore the one that stands up well if someone later asks the court to examine the will.
- Oral will. Reserved for a person on their deathbed and for one who sees themselves as facing death. Made before two witnesses, who record a memorandum and deposit it. It lapses a month later if the circumstances that justified it have passed.
A will made before a notary carries a further practical advantage: the notary verifies the testator's identity and understanding, and the resulting document is harder to attack. See notarial will.
What voids a will
Even a will made in the correct form may be set aside, in whole or in part. These are the principal grounds:
- Capacity. A will made by a minor, by a person declared legally incompetent, or by a person unable to appreciate the nature of a will, is void. This is the ground most often raised in dementia cases, and it is assessed as at the date the will was made, not the date of death.
- Defect of will. A provision made under duress, threat, undue influence, deceit or fraud is void.
- The beneficiary's involvement in the making. A provision benefiting the person who drafted the will, who witnessed it, or who took part in its making, is void. The rule is strict, and it extends to that person's spouse. In practice this is the ground that brings down more wills than any other.
On the other side, a formal defect is not necessarily the end. Section 25 allows the court to uphold a will despite a defect, where its basic components are present and the court has no doubt as to its authenticity. That is a rescue, not a plan: anyone relying on it in advance is inviting litigation.
The testator may revoke their will at any time, whether by a new will, by express revocation, or by destroying the will.
Mutual wills
Spouses may make wills in reliance on one another. That is the arrangement in section 8A of the statute, and it addresses the common case in which each spouse leaves everything to the other, and on the death of both the property passes to the children.
What is distinctive about mutual wills is not their content but the rules on revocation, which exist to protect that reliance:
- While both spouses are alive. A spouse wishing to revoke must give the other written notice. Once notice is given, both mutual wills are void.
- After one has died. Revocation carries a financial consequence: before the estate is distributed, the survivor must renounce the share they received; after distribution, they must return what they inherited.
Mutual wills are therefore not merely a convenient form. They create a mutual commitment, and should be made with an understanding of the price of changing course later. In families with children from earlier marriages this is usually the point that deserves the most attention.
What cannot be done outside a will
This is one of the most categorical provisions in the statute, and it surprises many: an agreement concerning a person's inheritance, and a renunciation of it, made during their lifetime, are void.
A series of practical conclusions follows:
- A marital property agreement cannot settle inheritance. A clause providing who inherits from whom, whether in such an agreement or in any other contract, has no effect. The only instrument is a will. See marital property agreement.
- A child's advance renunciation of inheritance does not bind. Renunciation is possible only after the death, by disclaiming from the estate.
- A gift to take effect only on death is ineffective unless made in a will. A gift made during life, by contrast, is effective, and that is precisely the distinction worth planning around.
The right response is not to try to circumvent the rule but to build around it: a will alongside lifetime transfers and, in suitable cases, a trust, so that the overall picture achieves the intended result through instruments the law recognises.
Inheritance and probate orders
A will does not itself transfer property. For a bank, the land registry or another authority to act, an order of the Registrar of Inheritance Affairs or of the family court is required.
- An inheritance order is made where there is no will, and declares who the statutory heirs are and the share of each.
- A probate order is made where there is a will, and gives it operative effect.
The application is filed with the Registrar of Inheritance Affairs. If an objection is filed, or if the State or a public body is a party, the file is transferred to the family court. The process is set out on probate order, and dealing with a problematic will on contesting a will.
Once the order is made, the heirs may divide the estate among themselves differently from what it provides, by an agreement made with the consent of all of them. It is a flexible and useful instrument, and it carries tax consequences too. See agreements between heirs.
The recurring mistakes
These are the defects we meet in wills brought to us for review or for objection. Almost all of them are preventable at the drafting stage.
- The beneficiary was present at the making. The son who drove his father, sat in the meeting and arranged the appointment. That alone puts the provision benefiting him at real risk.
- A holographic will that is not entirely handwritten. A printed form completed by hand is not a holographic will, and without two witnesses it is not a witnessed will either.
- Nothing is said about debts. The estate bears the deceased's debts. A will that divides assets without saying who bears a debt creates an immediate dispute.
- Assets that do not pass under the will. Life insurance proceeds and provident funds with a named beneficiary pass to that beneficiary, not according to the will. A mismatch between the two is a standing source of surprises.
- The will was never updated. Divorce, remarriage, a birth or the death of an heir change the picture. A will from twenty years ago usually no longer reflects the intention.
- Nobody knows where the will is. A will can be deposited with the Registrar of Inheritance Affairs, and that is the simple way to prevent this.
In summary
A will is not a document for old age. It is the only instrument that allows a departure from a fixed statutory scheme, and it stands or falls on the form in which it was made.
- Without a will the statutory scheme applies, in a fixed order and in fixed shares.
- Only four forms are recognised: holographic, before witnesses, before an authority, and oral. The best-documented is before an authority.
- A beneficiary's involvement in the making voids the provision benefiting them. It is the most common ground of invalidity.
- Inheritance cannot be settled by contract. Only by will.
- Mutual wills carry special revocation rules, best understood before signing rather than after.
We draft wills and mutual wills, assist with applications for inheritance and probate orders, and appear in objections. An initial consultation meeting establishes what a particular file requires before any drafting begins.
What people ask most often
Is a will compulsory?
What does the spouse receive where there is no will?
Do recognised cohabiting partners inherit?
Which forms of will does the statute recognise?
What does a holographic will require?
What does a will before witnesses require?
Can a family member witness a will?
What happens if there is a formal defect in the will?
Can inheritance be settled by contract rather than by will?
What is special about mutual wills?
Can a will be changed?
What is the difference between an inheritance order and a probate order?
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